author: PER CURIAM.

text:
    Lawrence A. KYTE, Plaintiff-Respondent, v. FIREMAN’S FUND AMERICAN INSURANCE COMPANIES, Defendant-Appellant.
    No. 10059.
    Missouri Court of Appeals, Springfield District.
    March 28, 1977.
    William C. Crawford, Frieze, Crandall & Crawford, Carthage, for plaintiff-respondent.
    John R. Martin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-appellant.
   PER CURIAM.

Plaintiff Lawrence Kyte sued for benefits allegedly due him under a group disability insurance policy issued by defendant Fireman’s Fund. Plaintiff claimed defendant had paid some benefits but wrongfully refused to make further payments due under the policy. Defendant denied liability for additional benefits and counterclaimed for recovery of monies it alleged were overpaid plaintiff because of his receipt of benefits under another disability policy. The Circuit Court of Jasper County, sitting without a jury, found for plaintiff on his petition and on defendant’s counterclaim, and entered judgment for plaintiff. We affirm.

The sole issue on appeal concerns the applicability of Part XV of the Fireman’s Fund group policy which covered plaintiff as an employee of Foremost-McKesson, Incorporated. This clause, entitled “Reduction In Indemnity For Other Disability Insurance Benefits,” provides as follows:

The amount of any Indemnity or expense payable under this policy shall be reduced by any benefits paid or payable under any other Disability Policies, or any plan, negotiated by or through any employer or sponsoring entity.

It was stipulated that plaintiff became disabled in 1971 and during June of that year began to receive monthly disability benefits under a policy with the Travelers Insurance Company. Defendant contends this policy with Travelers was “negotiated by or through” plaintiff’s employer within the meaning of the above-quoted Part XV of his group policy with Fireman’s Fund. It claims the benefits received by plaintiff from Travelers must be deducted from the amounts otherwise payable under its own policy.

The case was tried upon a stipulation of facts, documentary evidence, and the brief testimony of plaintiff. Plaintiff was employed by Foremost-McKesson from 1934 until he became disabled on June 30, 1971. In June 1958, Burt Barkus, an independent insurance agent, and Roy Wharton, a field supervisor for the Travelers Insurance Company, advised certain division officers of Foremost-McKesson that Travelers had a “franchise plan” for key employees. The plan would provide supplemental income in case of disability by illness. Under this plan the company employer had to agree to furnish a list of key employees, permit solicitation of employees on company premises, and make payroll deductions for premiums. If the company agreed to these conditions and at least five employees signed for the plan, it would become effective. After several letters and other communications between plaintiff’s employer and representatives of Travelers, the officers of Foremost-McKesson agreed to the plan and the required number of employees applied for policies. Plaintiff Lawrence Kyte executed an application on July 7, 1958, and on October 1,1958, Travelers issued to him the disability policy under which he began to receive benefits in 1971.

The Travelers “franchise plan” was not group insurance; each policy was individually applied for, and if the application was accepted Travelers issued an individual policy. In the event a policyholder under the plan left the employ of Foremost-McKes-son, he could arrange directly with Travelers for a continuation of the policy. The premium costs were borne entirely by the employee policyholders, and the company employer’s sole participation was to make payroll deductions for the premiums and forward the total amount to Travelers. In case the employer exercised its reserved right to cancel the payroll deductions, the franchise plan would be terminated.

Fireman’s Fund contends that because the “franchise plan” under which plaintiff obtained his disability policy with Travelers required the approval and cooperation of his employer, the Travelers policy was “negotiated by or through” his employer within the meaning of Part XY of the Fireman’s Fund group policy. It asserts that without the negotiations between Foremost-McKes-son and Travelers plaintiff could not have obtained his disability policy with Travelers.

The principles applicable to the construction of insurance policies are well established. In general, plain and unambiguous language will be given its ordinary meaning and effect. Resort to construction is had only when an ambiguity exists. Gossett v. Larson, 457 S.W.2d 709, 712-713 (Mo.1970); State ex rel. State Department of Public Health and Welfare v. Hanover Insurance Co., 431 S.W.2d 141, 143 (Mo.1968); Packard Manufacturing Co. v. Indi ana Lumbermens Mutual Insurance Co., 356 Mo. 687, 203 S.W.2d 415, 416 (banc 1947); Bennett v. American Life & Accident Insurance Co., 495 S.W.2d 753, 757 (Mo.App.1973). An ambiguity exists where the language used is reasonably susceptible of two interpretations. English v. Old American Insurance Co., 426 S.W.2d 33, 36 (Mo.1968); Brugioni v. Maryland Casualty Co., 382 S.W.2d 707, 710-711 (Mo.1964). If the language employed is found to be ambiguous, it will be strictly construed against the insurer and in favor of the insured. This is especially true when the clause in question attempts to limit or exclude coverage under the policy. Aetna Casualty & Surety Co. v. Haas, 422 S.W.2d 316, 321 (Mo.1968); Meyer Jewelry Co. v. General Insurance Co. of America, 422 S.W.2d 617, 623 (Mo.1968).

Considering these principles, we believe Part XV of the Fireman’s Fund policy, as applied to the facts of this case, is ambiguous and must therefore be construed in favor of the insured. That clause refers to benefits received “under any other Disability Policies, or any plan, negotiated by or through any employer or sponsoring entity.” The policy under which plaintiff was covered was negotiated solely between him and Travelers; he completed an individual application and was issued an individual disability policy. Fireman’s Fund argues we should not look solely at the individual policy between plaintiff and Travelers but must also consider the overall “franchise plan” agreed to between Travelers and plaintiff’s employer and without which the individual policy would not have been executed. We resolve this ambiguity by applying the language of Part XV to the individual policy of insurance between plaintiff and Travelers. It is, after all, the insurance policy itself and not the so-called “franchise plan” which afforded plaintiff coverage and the payment of disability benefits.

An additional reason exists for finding that Part XV of the Fireman’s Fund policy does not encompass plaintiff’s policy with Travelers. The Fireman’s Fund policy was group insurance and the policy and certificate of coverage were so entitled. The reference in Part XV to other disability policies can be interpreted to mean other group policies, especially when the words “negotiated by or through any employer or sponsoring entity ” are considered (our emphasis). Reading the policy as a whole [First National Bank of Malden v. Farmers New World Life Insurance Co., 455 S.W.2d 517, 523 (Mo.App.1970); 13 Appleman Insurance Law and Practice § 7383, at 43-45 (1976)], the language is reasonably susceptible to this interpretation. The Travelers policy, being individual and not group insurance, would thus not fall under this reduction of benefits clause.

We recognize that so-called “coordination of benefits clauses” or “antiduplication clauses” in group insurance contracts, requiring that benefits be reduced by payments from other sources, have been upheld when expressed in unambiguous terms and where such clauses clearly applied to the particular facts. In this instance, however, Part XV of the Fireman’s Fund group policy does not fall within that category of cases.

The judgment is affirmed.

All concur.

      . The following cases discuss such clauses, although none involve language similar to that used in Part XV of the Fireman’s Fund policy: Barker v. Coastal States Life Ins. Co., 138 Ga. App. 164, 225 S.E.2d 924 (1976); Elmer v. Washington Nat’l Ins. Co., 308 So.2d 312 (La.App.1975), cert. denied, 312 So.2d 340 (La.1975); Steele v. Gen. American Life Ins. Co., 217 Kan. 24, 535 P.2d 948 (1975); Gibson v. Metropolitan Life Ins. Co., 213 Kan. 764, 518 P.2d 422 (1974); Renslow v. Standard Life & Accident Ins. Co., 517 S.W.2d 1 (Tenn.1974); Blue Cross-Blue Shield of Tennessee v. Eddins, 516 S.W.2d 76 (Tenn.1974); Union Labor Life Ins. Co. v. Rudd, 502 S.W.2d 892 (Tex.Civ.App.1973); Millstead v. Life Ins. Co. of Virginia, 256 S.C. 449, 182 S.E.2d 867 (1971); Dina v. Aetna Life Ins. Co., Hartford, Connecticut, 65 Misc.2d 97, 316 N.Y.S.2d 654 (1970); Blue Cross of Northeastern New York, Inc. v. Ayotte, 35 A.D.2d 258, 315 N.Y.S.2d 998 (1970); McKay v. Equitable Life Assurance Society of the United States, 421 P.2d 166 (Wyo.1966); Metropolitan Life Ins. Co. v. Smith, 3 Conn.Cir. 169, 209 A.2d 693 (1965).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    FIRST STATE BANK OF JOPLIN, Plaintiff-Respondent, v. Burnal BROWN, Defendant-Appellant.
    No. 10507.
    Missouri Court of Appeals, Springfield District.
    March 31, 1977.
    Karl W. Blanchard, Jr., Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for plaintiff-respondent.
    L. Thomas Elliston, Elliston & Webster, Webb City, for defendant-appellant.
   PER CURIAM:

The transcript on appeal as approved by the parties, reveals the following chronology:

August 20, 1976 — The jury returned its verdict finding the issues in favor of the plaintiff and the court entered its minutes recasting, in summary, the case events of the day.

September S, 1976 — Defendant’s motion for a new trial was filed.

October 12, 1976 — Motion for a new trial was denied.

October 14, 1976 — Defendant filed notice of appeal “from the Judgment entered in this action on the 12th day of October, 1976.”

First we observe that no judgment was entered on October 12 as stated in the notice of appeal. In effect, the notice purports to be an appeal from the Order of October 12 denying the motion for new trial which is not an appealable order. In Interest of R.L.P., 536 S.W.2d 41, 43[7] (Mo.App.1976); Cox v. Lee, 530 S.W.2d 273, 274[1] (Mo.App.1975); World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607[1] (Mo.App.1970).

Secondly, we note that no judgment was ever entered in the case. “The right of appeal shall be as provided by law.” Rule 81.01, V.A.M.R.; Dudley Special Road District of Stoddard County v. Harrison, 515 S.W.2d 597, 598[1] (Mo.App.1974). As germane here, § 512.020, V.A.M.S., grants the right of appeal only to parties who may be aggrieved by “any final judgment in the case.” To be final and appealable, the judgment must purport to be the absolute and actual sentence of the law. This differs from a mere finding that one of the parties is entitled to a judgment. Cochran v. DeShazo, 538 S.W.2d 598, 600-601[5] (Mo. App.1976). The entry made by the court on August 20, as so labeled, was nothing more than a minute or docket entry which was not transmogrified into a final judgment by being denominated as such in defendant’s defective notice of appeal or otherwise. The minute entry did not constitute a final judgment from which an appeal may be taken. Williams v. Williams, 480 S.W.2d 525, 527[3] (Mo.App.1972). No judgment having been rendered or entered on the verdict in favor of plaintiff, we have no jurisdiction of this premature appeal and it is dismissed. Phelps v. Parker, 534 S.W.2d 278, 279[5] (Mo.App.1976).

All concur.

      . By approving the transcript, the parties have signified to us that it “correctly includes all of the record, proceedings and evidence” in the case. Rule 81.12(c), V.A.M.R.


author: HENRY, Justice.

text:
    WILLIAMSON COUNTY BROADCASTING COMPANY et al., Petitioners, v. WILLIAMSON COUNTY BOARD OF EDUCATION et al., Respondents.
    Supreme Court of Tennessee.
    April 11, 1977.
    Frank C. Ingraham, Ingraham, Young & Corbett, Nashville, for petitioners.
    Alfred H. Knight, III, Willis & Knight, Nashville, for respondents.
   OPINION

HENRY, Justice.

This civil action, arising under the Tennessee Open Meetings Act, commonly known as the “Sunshine Law”, as incorporated in Sec. 8-4401, et seq., T.C.A., devolves into a consideration and construction of Rule 56, Tenn.R.Civ.P.

Specifically, the question we address is whether a plaintiff, whose motion for summary judgment is overruled, may appeal. In responding in the negative, we look to the pleadings.

I.

The Williamson County Broadcasting Company, owner and operator of Radio Station W.A.G.G. in Franklin, joined by its news director and the Middle Tennessee Chapter of Sigma Delta Chi, a society of professional journalists, filed a complaint in the Chancery Court at Franklin against The Williamson County Board of Education and certain named individuals constituting its membership. The thrust of the complaint was that the Board had conducted two secret meetings in violation of the Sunshine Law. The principal relief sought was (1) a declaration that action taken at these meetings be declared void and (2) that the defendants be permanently enjoined from further violations of the Act.

The defendants answered, asserting in substance, that these were informal assemblages not covered by the act and affirmatively pleading that they had not violated the Sunshine Law.

About five months after the answer was' filed, but before any proceedings were conducted, plaintiffs moved for a summary judgment, supported by depositions, alleging that “there are no material issues of fact”. Plaintiffs’ motion is premised upon the insistence that both meetings were covered by the Sunshine Law.

The technical record contains a notice from counsel for plaintiffs that the motion for summary judgment would be heard on July 11, 1975. We assume it was heard on that date, but the record is silent on this point.

On July 28, 1975 the Chancellor filed his Findings of Fact and Conclusions of Law. Inter alia the Chancellor held that “there is no genuine issue of material fact,” only questions of law. These questions of law were decided adversely to the Broadcasting Company. The motion for summary judgment was denied, and the Findings and Conclusions end with the following:

If plaintiffs elect to stand upon their motion for summary judgment, as indicated by plaintiffs’ counsel in the course of argument, the complaint in this case will be dismissed at plaintiffs’ cost. (Emphasis supplied).

On August 2, 1975, plaintiffs moved to amend the findings. This is a seven (7) page document, taking issue with the Chancellor as to certain specified findings and shows conclusively that there were unresolved and genuine issues of material facts.

The same day the defendants moved for a summary judgment, based upon the pleadings, the same depositions and the Chancellor’s Findings of Fact and Conclusions of Law. The Court did not act upon this motion.

On September 9, 1977 the Chancellor overruled plaintiffs’ Motion to Amend the Findings.

On 15 October 1977, a “decree” was entered, incorporating the Findings of Fact and Conclusions of Law. This decree recites that “[t]he plaintiff [has] finally elected ... to stand on its motion for Summary Judgment . . .” and dismisses the action. An appeal ensued and the Court of Appeals decided the controversy on its merits.

II.

This case is simply not ripe for appellate review.

Rule 56.03, Tenn.R.Civ.P. provides in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. (Emphasis supplied).

Thus the rule contains two imperatives, i. e. (1) a finding that there is no genuine issue of material fact and (2) that the moving party is entitled to a judgment as a matter of law. The decree shows only that the first criterion has been met. Clearly, the record, in its present posture, shows that the plaintiffs were not entitled to judgment as a matter of law, since the Chancellor held to the contrary.

It is unfortunate that defendants’ motion for summary judgment was not filed sooner, or that the court did not act upon it. Had that motion been sustained we would be dealing with a final judgment.

There is no procedure known to our law for “standing” on a motion for summary judgment. When a plaintiff’s motion for summary judgment has been overruled, he has simply lost a preliminary skirmish and must proceed to trial.

The pertinent part of Rule 56.03, Tenn.R. Civ.P., as quoted above, tracks Rule 56 of the Federal Rules of Civil Procedure.

In Wright & Miller, Federal Practice and Procedure, Civil Sec. 2715, at page 424, the effect of overruling a motion for summary judgment and the ensuing procedure is stated as follows:

A denial of summary judgment indicates that the moving party has failed to establish that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law; a trial therefore is necessary. (Emphasis supplied).

We approve this language as a general rule of law in this jurisdiction. Generally speaking, when a party plaintiff “stands” on his unsuccessful motion for summary judgment, the proper procedure is for the trial judge to dismiss for want of prosecution. See Vaughan v. City Bank & Trust Company, Natchez, Miss., 218 F.2d 802 (5th Cir. 1955), which holds that where plaintiff refused to prosecute his action after his motion for summary judgment had been denied, the court “had no alternative to dismissing his suit.” 218 F.2d at 804.

Generally speaking, the action of a trial judge in overruling a motion for summary judgment is interlocutory in character and is not appealable. Normally, appeals lie only from final judgments. Aetna Casualty & Surety Co. v. Miller, 491 S.W.2d 85 (Tenn.1973).

We are not unmindful of the provisions of Sec. 27-305, T.C.A., which, inter alia, permits a trial judge to certify a controlling question of law as a basis for an interlocutory appeal. That section was neither pursued nor pursuable in the instant case.

We do not wish to be understood as holding that Sec. 27-305, T.C.A. may never be pursued in a case wherein a summary judgment is denied. In those cases wherein a party defendant is unsuccessful in his motion for a summary judgment, and where its correct resolution would terminate the controversy or substantially narrow the issues or materially advance the ultimate termination of the litigation, an interlocutory appeal on the basis of a trial judge’s certification, would be proper for the appellate courts, acting in their discretion, to consider. Here we do not have such a case.

We reverse and remand to the Chancery Court at Franklin with instructions to that Court to rule on defendants’ motion for a summary judgment and/or to direct that plaintiffs prosecute their action.

In the event, this action is fully and finally terminated on defendants’ motion for a summary judgment, the additional record thus made may be certified to the Court of Appeals for such action as it may deem appropriate, and that Court may then forward the record to us for consideration on the merits. If terminated after a trial on the merits the usual procedure on appellate review shall govern.

Reversed and Remanded.

All concur.


author: WM. M. LEECH, Special Justice.

text:
    Roy LAWSON et al., Appellants, v. John RAY et al., Appellees.
    Supreme Court of Tennessee.
    April 11, 1977.

      Michael E. Vaughn, Robert C. LeQuire, Garrett, Shields, LeQuire & Glandon, Manchester, for appellants.
    Harry B. Gilley, County Atty., Manchester, James H. Henry, Henry & McGord, Tullahoma, for appellees.
   OPINION

WM. M. LEECH, Special Justice.

This cause comes to this Court by direct appeal from a decree of the Chancery Court for Coffee County, Tennessee, wherein defendants’ Motion for Summary Judgment was sustained and the case dismissed. We affirm.

In this opinion the parties will be referred to as they appeared in the Court below; that is Appellants, Roy Lawson, et al. Citizens and Taxpayers of Coffee County, as plaintiffs, and Appellees, the County Judge, the County Trustee and the members of the Quarterly County Court of Coffee County, as defendants.

The Chancellor in sustaining defendants’ Motion for Summary Judgment in a memorandum opinion correctly set out the purpose of the suit and the issue involved as follows:

“This is an action brought by the Citizens of Coffee County, Tennessee against a number of the elected officials of Coffee County, Tennessee, including the County Judge and members of the Quarterly County Court. The action seeks to enjoin the County officials from building a new courthouse in Manchester, the County Seat. The suit alleges that the construction of such building would be in violation of the Constitution and Section 5-401 of the Tennessee Code Annotated which requires two-thirds of the qualified voters of the County to remove the ‘Seat of Justice’.
It is stipulated that the present courthouse is located on a 40 acre tract that was set aside as a Seat of Justice pursuant to the act of the legislature.
It is further stipulated that the location for the proposed new courthouse is approximately three blocks from the present one, within the corporate limits of the City of Manchester as now constituted and has been constituted for many years.
The plaintiffs ask that the officials be enjoined from constructing the new courthouse as they claim it would be a relocation of the Seat of Justice and in violation of the law since two-thirds or more of the qualified voters of Coffee County Tennessee have not affirmatively voted to make such change.
The defendants ask that the petition be dismissed on the basis that the defendants have acted lawfully, and the plaintiffs are not entitled to the relief sought. They further claim that there is no material dispute of facts and, therefore, request a Summary Judgment for the defendants.
This Court has the jurisdiction over this case. [Lindsay] v. Allen, 112 Tenn. 637, [82 S.W. 171] Stuart v. Bair, 67 Tenn. 141.
The Private Acts pertaining to the historical development of the town of Manchester as they apply to this case are as follows:
‘1. Chapter 47, Private Acts of 1835-36, Section 6.
“Be it enacted, That the town of Manchester, the seat of justice in Coffee County, shall be laid off by the commissioners appointed for that purpose between the two forks of Duck River, above the Stone Fort, on both sides of the main road from Nashville to Winchester, and upon the hundred acres of land obtained from Andrew Hynes for that purpose.
EPHRAIM H. FOSTER,
Speaker of the House of Representatives.
JONATHAN WEBSTER,
Speaker of the Senate.
Passed February 9, 1836.”
2. Chapter 30, Private Acts of 1837-38.
“An Act to locate permanently the seat of justice in Coffee County.
Section 1. Be it enacted by the General Assembly of the State of Tennessee, That the sixth section of an act, passed the ninth day of February, 1836, entitled ‘an act’ supplemental to an act to establish the county of Cannon, be and the same is hereby repealed; and that the town of Manchester, as laid off by the commissioners, on the south side of the two forks of Duck River, in said county, shall continue to be the seat of justice for said county of Coffee.
JOHN COCKE,
Speaker of the House of Representatives.
TERRY H. CAHAL,
Speaker of the Senate.
Passed October 21st, 1837.”
3. Chapter 278, Private Acts of 1837-38.
“An Act to incorporate the citizens in the town of Manchester, in the County of Coffee.
Section 1. Be it enacted by the General Assembly of the State of Tennessee, That the citizens of the town of Manchester, in the county of Coffee, be and they are hereby incorporated under the name and style of the mayor and aider-men of the town of Manchester, with the same powers, rights and privileges in all respects as are conferred upon the mayor and aldermen of the town of Lewisburg, in Marshall county, by an act passed at the present session of the General Assembly.
Section 2. Be it enacted, That the sheriff of Coffee County shall, after giving ten days notice at three public places in the town of Manchester, open and hold an election for seven aider-men, under the same rules and regulations as are prescribed for electing aldermen in the town of Lewisburg, and ever afterwards, the said sheriff shall hold said election on the first Saturday in January in each and every year. Section 3. Be it enacted, That the mayor and aldermen shall have power to extend the corporate limits so as to include both the springs, and may so run the lines of said corporation.
JOHN COCKE,
Speaker of the House of Representatives.
TERRY H. CAHAL,
Speaker of the Senate.
Passed January 26th, 1838.” ’

It is obviously true that the old Seat of Justice shall continue as originally located until there is an actual removal to another place by the required vote; however, it is necessary for the Court to define Seat of Justice and analyze the intent of the Constitutional provision. The issue as stated in the defendants brief is reiterated as it concisely pinpoints the issue.

‘Is the “Seat of Justice” of Coffee County permanently limited to the 200 acres of land as originally fixed and described by the Private Acts of 1837 so as to require a two-thirds vote of the people to move the courthouse to another location within the boundaries or limits of the town of Manchester as now constituted?’ ”

The pertinent portion of Article 10, Section 4 of the Constitution of Tennessee applicable to the issue in this case reads:

“. . . nor shall the Seat of Justice of any County be removed without the concurrence of two-thirds of the qualified voters of the County. But the foregoing provision requiring two-thirds majority of the voters of a County to remove its County seat shall not apply to the Counties of Obion and Cocke.” (Emphasis added.)

It is clear from the above language of the Constitution that “Seat of Justice” and “County Seat” are synonymous terms. Can it be said that the framers of the Constitution intended that once a county seat town had been established then the courthouse and all county buildings provided by the county for county offices shall be erected within the original limits of the county town? We think not.

Both plaintiffs and defendants cite the 1874 case of Stuart v. Bair, 67 Tenn. 141. In that case there was an attempt to move the county seat from Newport to Clifton, two separate and distinct towns in Cocke County. The original bill in that case set out and alleged in detail a series of events constituting a fraudulent design to move the county government of Cocke County from one rural town to another rural town, and this scheme to do indirectly what could not be accomplished directly culminated by fraudulently procuring the passage of a private act in the General Assembly extending the corporate limits of the county seat town so as to include the other town. The ease does recognize that “Seat of Justice” and “County Seat” are synonymous terms.

We think it advisable to call attention to the method by which communities were incorporated and corporate boundaries extended in 1874, more than one hundred years ago. Tennessee then was primarily rural, and the county seat towns were in the main small. Communities were incorporated by Private Acts of the Legislature, and the wishes of the local legislator in the passage of private acts affecting his county were seldom questioned. In 1836 when Manchester was designated as the county seat town for Coffee County, all county offices could easily be contained in one building. Since then many additional departments of county government have been established. Because of changes in local government, increased population, changing from primarily an agricultural to a rapidly expanding industrial state, Tennessee has seen the necessity to change the procedure for incorporating unincorporated towns and communities and annexing additional territory. Thus, the subterfuge attempted in Stuart v. Bair, supra, could not today be employed.

If there were allegations and proof that the boundaries of Manchester had been extended as a subterfuge to defeat the provisions of the Constitution of Tennessee and remove the county seat of Coffee County from Manchester to another town in the county, we would not hesitate to grant plaintiffs the relief which they seek.

The stipulation in the record discloses that the area of the proposed new site has been within the corporate limits of Manchester for many years, and from the affirmative averment in defendants’ answer, which was not denied, since March 17,1905.

The framers of the Constitution of 1870 wisely did not specifically prohibit the relocation of the county courthouse within the limits of the county seat town as expanded. The action of local legislative bodies when acting in good faith for the efficient administration of local government, if not specifically prohibited by the Constitution or general statutes, should not be disturbed by the Courts.

Plaintiffs cite several cases from foreign jurisdictions in support of their construction of our Constitution, and they rely mainly upon two Alabama cases, Marengo County v. Matkin, 134 Ala. 275, 32 So. 669 (1902) and Rogers v. Wells, 216 Ala. 514, 113 So. 524 (1927). The Alabama Constitution is more restrictive in its terms than is the Tennessee Constitution, and even if that were not the case, we would not be inclined to place such limitations upon the authority of our local governments to keep abreast with twentieth century progress.

Defendants have cited two recent cases from states with constitutional provisions virtually identical to that portion of the Tennessee Constitution here being considered: Morris v. Scott, 258 S.C. 435, 189 S.E.2d 28 (1972), and Ventura Realty Co. v. Robinson, 10 Cal.App.3d 628, 89 Cal.Rptr. 117 (1970). These cases support defendants’ interpretation.

Section 5-711, Tennessee Code Annotated, specifically provides for disposition of inadequate county buildings and the construction of new facilities at a new location in the county seat town. From the undisputed facts disclosed by the record the Coffee County Court has complied with this statutory provision.

We adopt the reasoning applied by the California Court of Appeals in Ventura Realty Co. and construe the provision of Article 10, Section 4 of the Tennessee Constitution that the “removal” therein contemplated applies to a transfer of the seat of county government from the established county seat town to some other city or town in the county and not a change of the site of the courthouse from one part of the county seat town to another part of the same town.

The decree of the Chancery Court for Coffee County is affirmed. The appellants will pay the costs of the cause.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.

      . Section 5-705, Tennessee Code Annotated reads as follows: “The courthouse and all county buildings provided by the county for the county offices shall be erected within the limits of the county town; provided, however, the jail may be located outside the limits of the county town but within the boundaries of the county.”

      . Title 6, Tennessee Code Annotated, Chapter 1, Section 6-101 et seq. provides for incorporating an unincorporated territory of a county and provides for the issuance of a charter upon a vote of a majority of the residents of the territory affected. Section 6-101 provides in part: “No territory, any part of the boundaries of which would be within two (2) miles of any part of the boundaries of an existing incorporated city or town, and which territory has less than five hundred (500) residents as determined by a census taken by or under the direction of the Tennessee state planning commission, may be incorporated as a city or town under any general law or by private act.”
      Chapter 3 of Title 6, Tennessee Code Annotated, “Change of Municipal Boundaries” requires the adoption of a plan of services to be approved by a planning commission and subject to court review.

      . “5-711. Sale and replacement of courthouse or jail. — Whenever, in the opinion of a majority of the justices of the county court, two-thirds (⅞) of them being present, the site of a jail or public prison, or courthouse, is unhealthy, insecure, or inconvenient in its location to the county or to the town, or inhabitants of the town, in which it is situated, or the interest and convenience of said town would be promoted by the removal of any of the same, said justices may order a sale of the site, and of the whole or part of the materials used in its construction; and they may also order that a more eligible, convenient, healthy, or secure site be purchased, and cause to be erected thereon a new jail or courthouse, better suited to the convenience of said town, and to secure the safe custody, health, and comfort of prisoners.”


author: COOPER, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. William GOAD, Jr., Respondent.
    Supreme Court of Tennessee.
    April 18, 1977.

      William W. Hunt, III, Asst. Atty. Gen., Brooks McLemore, Atty. Gen., Nashville, for petitioner.
    Thomas W. Hardin, Columbia, for respondent.
   OPINION

COOPER, Chief Justice.

Respondent William Goad, Jr., was convicted in the Criminal Court of Maury County, and was sentenced to serve five years in the penitentiary. The Court of Criminal Appeals reversed and remanded, holding that the arrest of respondent was illegal and that the trial judge had committed reversible error in failing to suppress evidence “flowing from the unlawful arrest.”

This court granted a petition for certiora-ri filed on behalf of the State to consider the issue oh which reversal had been ordered.

On May 16, 1975, at about 10:00 a. m., Mrs. Harry Napier, a co-owner of the Mau-ry Package Store in Columbia, Tennessee, was robbed by a lone man wielding a knife. Mrs. Napier described the robber as a white male, in his middle twenties, with long blond hair and a “bony-like” face, and wearing a blue denim jacket. Shortly after the robbery, police twice stopped a blue, 2-door, Pontiac LeMans automobile in which the respondent was riding. The second stop resulted in the arrest of respondent and his three companions.

The first stop occurred in nearby Mt. Pleasant, Tennessee. The four men in the automobile were seen coming out of a tavern and one of them was noticeably staggering as he walked. The police chief of Mt. Pleasant directed one of his patrolmen, George Bullock, to stop the automobile to see if the occupants were drunk. The officers found that one of the four occupants, not the respondent, was intoxicated but no arrest was made.

At the time he stopped the automobile, Bullock knew of the Columbia liquor store robbery and had a description of the robber. However, during the detention of the respondent and his companions, he made no connection between the robbery and the four men. Bullock also testified he did not see a blue denim jacket in the automobile.

The second stop of the automobile, and the stop that resulted in the evidence the Court of Criminal Appeals held to be inadmissible, was made by Columbia Detective Albert Lentz. Lentz was on patrol when he received a radio communication from the Mt. Pleasant police saying they had stopped an automobile in which four men were riding as passengers, and that William Goad, Jr., was one of them. Lentz testified he knew Goad’s description matched that of the robber given by the victim and decided to have the car stopped again because “I thought it would be worthwhile to check him out.”

Lentz then drove out Mt. Pleasant Pike until he met the blue Pontiac in which Goad was riding. Lentz followed the automobile as it circled from the Pike through the Graymere Subdivision and back toward the Pike, and radioed for help in stopping the automobile. Two other radio cars and Lentz intercepted the Pontiac as it entered the Pike.

On stopping the automobile, Lentz walked to the passenger’s side where respondent was sitting. According to Lentz, he could plainly see “some bills, some money” sticking out from under the seat occupied by respondent, and a blue denim jacket lying on the console between the two front seats. Each passenger, in turn, denied ownership of the money. At that time, Lentz informed the four men that “they were under arrest in investigation of the robbery.” Money taken from the four men, together with that on the floor of the automobile, totalled $279.00; $313.00 was taken in the robbery. Further, one of the men was wearing a belt holster containing a knife of the same description as the one used in the robbery.

As stated previously, the Court of Criminal Appeals concluded that the second stop of the automobile amounted to a warrant-less arrest for which no probable cause existed and, consequently, evidence seized as the result of the arrest was inadmissible in evidence. In so holding, the court reasoned that the description of the robber “would probably fit hundreds, perhaps thousands of people in the area. Such police dragnets, albeit successful in some instances such as the one dealt with here, are prohibited by the United States Constitution as interpreted by the United States Supreme Court,” citing Davis v. Mississippi, 394 U.S. 721, 726-727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

We find nothing in the record to indicate that the stopping of the Pontiac automobile was the result of a “police dragnet.” To the contrary, the evidence shows that the stopping of the automobile was due to the knowledge of Detective Lentz that Goad was in the automobile and that he fit the description of the robber, which description was much more detailed than that of the rapist in Davis.

Also, we find ourselves in disagreement with the conclusion of the Court of Criminal Appeals that the second stopping of the automobile amounted to a warrantless arrest. As we view the evidence, the officers did not stop the automobile to make an arrest, but did so as part of a routine police investigation. The arrest took place after the automobile was stopped and the officer, standing where he had the right to be, saw incriminating evidence in the automobile. This evidence, coupled with the fact that Goad fit the description of the robber, constituted probable cause and justified the arrest of respondent. See State v. McLennan, 503 S.W.2d 909 (Tenn.1973), cert. den. 414 U.S. 1112, 94 S.Ct. 843, 38 L.Ed.2d 739; Wilson v. Porter, 361 F.2d 412, 15 (9th Cir.1966).

In the Porter case, supra, the court held that a founded suspicion is all that is necessary to justify the brief detention of a person in the course of a routine investigation — “some basis from which the court can determine that the detention was not arbitrary or harassing.”

“We take it as settled that there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest for purposes of limited inquiry in the course of routine police investigations. A line between reasonable detention for routine investigation and detention which could be characterized as capricious and arbitrary cannot neatly be drawn. But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their actions. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” Wilson v. Porter, supra at 415.

The Porter holding, or rule if you may, was the basis for this court’s decision in State v. McLennan, supra. In McLennan, police officers on the early morning shift saw an automobile coming out of a closed service station, which was located in a high-crime area. The car had Tennessee National Guard plates which did not show the county where the automobile was registered. The officers stopped the automobile “for identification purposes.” When the occupants emerged from the car, a bag of burglary tools and a pair of “walkie-talkies” were revealed. The occupants of the automobile were then arrested. This court concluded that the officers had a substantial reason to be suspicious and that the stopping of defendant’s automobile to ascertain “the identity of the occupants and where they resided” was justified. It was also pointed out that the defendant was not arrested until after the officers saw “the criminal evidence” which was in “plain view.”

In this case, a crime had been committed. A specific description of the robber had been given to police. Detective Lentz had been informed that William Goad, Jr., who fit the description of the robber, was in a blue Pontiac automobile moving on Mt. Pleasant Pike toward Columbia. We think this is sufficient information to justify the officers stopping the Pontiac automobile as part of the police investigation of the robbery.

“The process of inquiry may involve some restraint on the individual liberty of some people of whom police make inquiries without arrest. It would be absurd to suggest that police must arrest a person before they can ask him questions.” Goldsmith v. United States, 107 U.S.App. D.C. 305, 277 F.2d 335 (1960).

And, as this court pointed out in Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857 (1968),

“Constitutional rights are not violated when a law officer, without any trespass against [the] defendant, and while he is at a place where he [had] a right to be, looks and sees evidence against a defendant which is plainly visible.”

The judgment of the Court of Criminal Appeals is reversed and the judgment of the trial court is affirmed.

PONES, HENRY, BROCK and HARBI-SON, JJ., concur.


author: GALBREATH, Judge.

text:
    Newton O. ENNIS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 28, 1976.
    Certiorari Denied by Supreme Court March 14, 1977.

      Daniel B. Minor, Kingsport, for appellant.
    Brooks McLemore, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Carl K. Kirkpatrick, Dist. Atty. Gen., Kingsport, for appel-lee.
   OPINION

GALBREATH, Judge.

The appellant was convicted by the Criminal Court of Sullivan County of robbery and sentenced to serve not less than 7 nor more than 15 years in the penitentiary. His contentions on appeal are that the evidence of guilt was insufficient; that his identification as one of the two men who robbed the Kingsport Minute Market on the night of May 2, 1975 was impermissibly influenced by the showing of his photograph to the clerk on duty on the night in question along with the suggestion that the photograph was the picture of the person who had robbed the market; and that the cross examination of a defense witness was so prejudicial that a mistrial should have been ordered. We overrule all the assignments of error and affirm.

The store clerk, Mike Myer, testified that the defendant was one of the men who robbed the market. He stated that his identification was based on the observation of the defendant at the store during the course of the robbery, rather than a picture shown to him some 4 months later by a fellow employee who at the time told him he thought he had the picture of the person who had committed the robbery.

The trial judge conducted a full evi-dentiary hearing outside the presence of the jury and from the circumstances found that the in-court identification was not tainted by the photographic exhibition. The clerk had failed to identify any of a number of mug shots in a group shown to him by the police shortly after the robbery, but did pick the defendant’s picture out of a second group shown to him by the police months later, after the co-employee had shown him the defendant’s picture. A finding by the trial judge in this regard carries with it the weight of a jury verdict and is binding on appeal unless the evidence preponderates against it. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963); State v. Meadows, 215 Tenn. 668, 389 S.W.2d 256 (1965); Lloyd v. State, 223 Tenn. 1, 440 S.W.2d 797 (1969).

From the testimony of Mr. Myers it is clear that, while he knew what the robber looked like at the time of the robbery, he did not know his identity. When he was first shown pictures of others by the police it did nothing to assist him in learning who the person was that he had observed closely enough to later recognize. (The second robber was not observed well enough for the victim to later recognize under any circumstances.) The clerk was able to identify the defendant as one of the two men who participated in the robbery every time he was shown a picture of him. This evidence amply supports the jury finding as to the identification of the defendant.

Even if the exhibition of the defendant’s photograph to Myer’s had been unduly suggestive, this fact would not, per se, have excluded the resulting proof of identification. The decisions of the United States Supreme Court relied on by the appellant dealing with identification procedures involved in line-ups, show-ups, and photographic exhibits are inapplicable because they all pertain to investigations by the police. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); see also Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). These decisions, as well as others such as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), require the exclusion of evidence obtained in violation of one or more of the constitutional rights available to defendants caught up in criminal prosecutions. The purpose of this rule is to inhibit governmental misconduct during criminal investigations by restricting the use of the fruits of unconstitutional procedures against an accused. As Mapp, supra, admonished:

Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. 367 U.S. at 659, 81 S.Ct. at 1694.

There is no suggestion that the co-employee who showed the victim the defendant’s picture was an agent for the police. The safeguards of the exclusionary rule do not extend to the activities of private citizens. Thus, a confession made in confidence to a neighbor or one obtained by trick or coercion by a private individual does not have to be measured against standards established for police investigations. A thief may testify as to stolen property he observed after breaking into the warehouse of a “fence” without regard to the accused’s protections against unreasonable searches of his property. Private deprivations of an accused’s rights may involve civil or criminal sanction or may affect the weight given evidence so obtained but they do not result in the exclusion of the evidence itself.

In the instant case the jury judged the credibility of the store clerk’s testimony linking the appellant with the crime. We must assume that the jury took into account the manner in which the identification was made and its reliability. We cannot hold that the evidence was either inadmissible or insufficient.

We also overrule the assignments of error flowing from testimony brought out on cross-examination by a witness for the defense who told the jury that he, and not the defendant, committed the robbery. This witness had a long history of criminal convictions and was serving a sentence in the penitentiary at the time of the trial. This witness admitted that he had escaped and had attempted to escape from lawful confinement on a number of prior occasions. The witness also admitted that he had secreted a handcuff key in his clothing before leaving the penitentiary in order to effect an escape while in Sullivan County for the purpose of being a witness in this case. The witness candidly testified that “every prisoner prepares for an escape at all times. He had hacksaw blades sewed in his shoes, keys sewed there_I’ve got an extra key here.” Whereupon the witness pulled a key from a hiding place to show the jury. The judge then ordered a court officer to confiscate the key.

The .purpose of this rather dramatic cross-examination and its startling result was to impeach the witness and to show that he had an improper motive for testifying, namely escape, while being transported to and from the prison. It is always material to show by way of impeachment a motive other than truthfulness for being a witness. Maxwell v. State, 50 Tenn. 420 (1872); Markland v. Elizabethton General Hospital, 5 Tenn.App. 519 (1927).

Affirmed.

RUSSELL and DAUGHTREY, JJ., concur.


author: McGEE, Justice. REAVLEY, Justice,

text:
    Betty MESHWERT, Petitioner, v. Gene MESHWERT, Respondent.
    No. B-6438.
    Supreme Court of Texas.
    March 30, 1977.
    Everett B. Lord and Walter M. Sekaly, Beaumont, for petitioner.
    Lamson & Plessala, Frank M. Lamson, Melvin J. Boneau, Port Arthur, for respondent.
   McGEE, Justice.

This case concerns the construction of the term “reasonably explaining” as used in Texas Rules of Civil Procedure 21c. The court of civil appeals held that the movant in this case gave an excuse “reasonably explaining” the failure to timely file the transcript and statemént of facts under the sixty-day requirement of Rule 386. Tex.Civ.App., 543 S.W.2d 877. We affirm.

Betty Meshwert sought a divorce from her husband, Gene Meshwert, and a property settlement. The trial court entered judgment on December 22, 1975 dissolving the marriage, dividing the property, and awarding Betty attorneys’ fees. Gene filed a motion for new trial on December 31, 1975, which was overruled by operation of law February 14, 1976. Rule 329b. The sixty-day deadline for filing the transcript and statement of facts expired April 14, 1976. Rule 386. The transcript and statement of facts were tendered to the clerk of the court of civil appeals on April 19, 1976. On April 21,1976 Gene filed a motion under Rule 21c for leave to file the record and transcript. Gene’s reason for not tendering the record and transcript before the proper date was the miscalculation of the proper filing date. The court of civil appeals granted Gene’s motion and allowed the statement of facts and transcript to be filed late.

Rule 21c was promulgated to alleviate the harshness of old Rule 386. Prior to amendment, Rule 386 required the movant to show “good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed . .” Rule 21c has relaxed the strict requirement of pre-amendment Rule 386 by providing:

“Rule 21c. Extensions of Time on Appeal
“The failure of a party to timely file a transcript, statement of facts, motion for rehearing in the court of civil appeals or application for writ of error, will not authorize a dismissal or loss of the appeal if the defaulting party files a motion reasonably explaining such failure in the court whose jurisdiction to make the next ruling in the case would be affected by such failure. Said motion must be filed within fifteen (15) days of the last date for timely filing provided in the applicable rule or rules sought to be avoided, although it may be acted upon by the court at a date thereafter.” [Emphasis added].

The courts of civil appeals, as noted below, have differed in the standard to be applied in determining whether reasons presented did or did not “reasonably explain” the failure to timely file. The writ of error was granted in this ease to resolve the conflict. The case presenting the rationale relied on or rejected in later decisions is Sloan v. Passman, 536 S.W.2d 575 (Tex.Civ.App.—Dallas 1976, no writ). The Beaumont Court of Civil Appeals in this ease expressly declined to follow Sloan.

The majority opinion in Sloan held that the reasonable explanation given must extend to the entire sixty-day period set out in Rule 386. The majority in Sloan stated that while Rule 21c had relaxed the required standard, the time period for which the standard should be applied was still sixty days. Patterson v. Hall, 430 S.W.2d 483 (Tex.1968); Wigley v. Taylor, 393 S.W.2d 170 (Tex.1965). The majority also stated that promptness and diligence were implicit in Rule 21c. The dissent in Sloan applied in principle the standard enunciated by this court to motions to set aside default judgments. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). In Craddock this court held that to be an acceptable excuse, the failure to answer must not have been intentional or the result of conscious indifference but was due to mistake or accident. 134 Tex. 388, 393, 133 S.W.2d 124, 126.

We hold, following the dissent in Sloan and the cases cited below, that “reasonably explaining” means any plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance. United Fire Ins. Co. v. Stricklin, supra; Gallegos v. Truck Ins. Exchange, 539 S.W.2d 353 (Tex.Civ.App.—San Antonio 1976, no writ); Stieler v. Stieler, 537 S.W.2d 954 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.). The fifteen-day time limit is mandatory; and unless a motion is filed within fifteen days, the court of civil appeals cannot grant leave to file the instruments.

The court of civil appeals reversed the judgment of the trial court and remanded the cause as to the issue of attorneys’ fees because the judgment was not supported by sufficient evidence. We agree with the court of civil appeals that there is some evidence, but not conclusive evidence of reasonable attorneys’ fees. This court does not have jurisdiction to pass upon the sufficiency of the evidence supporting the judgment of attorneys’ fees.

The judgment of the Court of Civil Appeals is, therefore, affirmed.

Concurring Opinion by REAVLEY, J., in which GREENHILL, C. J., joins.

REAVLEY, Justice,

concurring.

I agree with the opinion of the Court, but I foresee potential problems with Rule 21c. It should be the policy of the courts ruling upon Rule 21c motions to require the record or application, etc. to be filed with the 21c motion — or as soon thereafter as is possible, viewing the possibility from the date of filing of the 21c motion.

It is one thing to let the deadline go by through miscalculation or other justifiable excuse; it is another thing for the movant to seek a new deadline thereafter to accommodate his busy schedule. If Rule 21c is used as a motion for continuance and as a device to add weeks to the appellate process, which is already much too protracted, then we may be forced to return to the harshness of Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952).

GREENHILL, C. J., joins in this concurring opinion.

      . All references to rules are to Texas Rules of Civil Procedure.

      . Sloan v. Passman was specifically overruled by the Dallas Court of Civil Appeals in United States Fire Insurance Co. v. Stricklin, 547 S.W.2d 338 (Tex.Civ.App.—Dallas 1977, no writ). The court adopted the dissenting opinion in Sloan v. Passman.


author: REAVLEY, Justice.

text:
    CLEAR LAKE CITY WATER AUTHORITY, Petitioner, v. CLEAR LAKE UTILITIES COMPANY et al., Respondents.
    No. B-6071.
    Supreme Court of Texas.
    April 13, 1977.
    Rehearing Denied May 11, 1977.

      Vinson, Elkins, Searls, Connally & Smith, Raybourne Thompson, Jr. and W. Allyn Hoaglund, Houston, for petitioner.
    Butler, Binion, Rice, Cook & Knapp, Louis B. Paine, Jr. and R. Hayden Burns, Jerry L. Bryan, Delange, Hudson, Pitman & Katz, Eugene J. Pitman, Houston, Charles A. Easterling, Pasadena, for respondents.
   REAVLEY, Justice.

Clear Lake Utilities Company (Utilities) initiated this litigation. Utilities sought a declaratory judgment that its contract with Clear Lake Water Authority (Authority) remains a valid and binding contract to give Utilities an exclusive right to provide water and sewer service to all landowners within a certain 100 acre tract. Utilities also sought a declaratory judgment that the property owned by Clear Lake Apartments, Inc. (Apartments), and within the 100 acre tract, could obtain water and sewer service only from Utilities by virtue of a contract between Utilities and the predecessor in title to that property, North Clear Lake Development Corporation (NCL). Authority then sought a declaratory judgment that its contract with Utilities is no longer in effect, either because it was void from the beginning or was legally terminated. Apartments contended that it is not bound by the contract between NCL and Utilities. Utilities also sought damages from Authority and the City of Pasadena (Pasadena) for conspiracy and wrongful interference with the contract between Utilities and Authority. The trial court declared both contracts to be valid and binding on Authority and Utilities and Apartments for a period of five years from the date of its judgment. Utilities was denied any recovery of damages. The Court of Civil Appeals affirmed the denial of damages, but otherwise reversed the trial court judgment. As to the controversy between Utilities and Apartments, the Court of Civil Appeals held that Apartments is not bound by the exclusive service provision in the contract between Utilities and NCL. The controversy between Utilities and Authority was sent back to the trial court with instructions that it could not proceed to render a declaratory judgment without the joinder as parties of all the landowners in the 100 acre tract who have contracts with Utilities making them dependent upon Utilities for water and sewer service. 537 S.W.2d 48. We agree with the Court of Civil Appeals except that we decide the controversy between Utilities and Authority without the joinder of the other landowners.

In the early 1960’s Lester Tatum, the owner of a 100 acre tract of land on the north shore of Clear Lake near Pasadena, sold portions of this tract to a number of corporations he had formed for the purpose of promoting the residential development of the land. NCL was one of these corporations; it purchased the eight acres which was later resold to Apartments. In 1963 Tatum and others formed Utilities, a private utility company, to provide water and sewer service to the 100 acre tract which was not at the time within the boundaries of any municipality or water district. Utilities obtained the necessary permits for the operation of a private utility and undertook construction of a system capable of providing water and treating sewage.

At the urging of the Water Pollution Control Board, which was advocating re-gionalized sewer systems as an alternative to the proliferation of smaller less efficient systems, Utilities entered into negotiations for water and sewer service with Authority, a conservation and reclamation district created pursuant to statute. By an agreement dated July 11, 1966, Authority promised to furnish Utilities with water and sewage treatment service for the 100 acre tract. In return Utilities agreed to construct and maintain, at no expense to Authority, a water and sewer pipeline system capable of serving the tract and to pay Authority for the water and sewer service at a rate one and one-half times that charged by Authority to its customers located within Authority’s boundaries. This contract provided that Utilities “shall have the exclusive right, as between the parties hereto, to furnish water and sanitary sewer service to parties within said tract.” The contract was silent as to its duration. Utilities abandoned its plan to build a sewage disposal plant, abandoned portions of the sewage lines which had been constructed pursuant to its initial plan of development, and relinquished its water well and sewage disposal permits. Authority has from the time of this contract to the present provided Utilities water and sewer service for the 100 acre tract.

Following the execution of the July 11, 1966 agreement with Authority, Utilities entered into water and sewer service contracts with the various landowners of the 100 acres. Typical of these contracts was the one between Utilities and NCL executed on November 21, 1967 in which Utilities agreed to construct water and sewer lines adjacent to, and capable of providing service to, the eight acre tract; in return NCL agreed to contribute $23,000 toward the costs of the contemplated construction, and granted Utilities the exclusive right to furnish water and sewer service to the land. The contract provided: “The term of this agreement shall continue in effect and be irrevocable for the maximum period of time which it may lawfully do so” and will “be binding upon and shall inure to the benefit of successors and assigns and shall constitute a covenant running with said land . . . .” The agreement was expressly made subject to all applicable provisions of the July 11, 1966 agreement between Utilities and Authority. The contract was recorded in the Harris County Deed Records shortly after it was executed. An apartment project was erected upon the land in 1968; through mesne conveyances the eight acres is now owned by Apartments.

THE CONTROVERSY BETWEEN APARTMENTS AND UTILITIES

The eight acre tract originally owned by NCL and now owned by Apartments is within an area annexed by Pasadena in August of 1970. In 1975 Apartments notified Utilities of its intention to terminate service from Utilities and to obtain water and sewer service from Pasadena. Utilities then instituted this suit in which it seeks a declaration that the exclusive service provision in its contract with NCL is binding on Apartments either as a covenant running with the land or as an equitable servitude. The Court of Civil Appeals held that Apartments is not bound by the provision under either theory; in this Court Utilities presses only its contention that the provision is enforceable in equity.

Utilities attempts to invoke the doctrine of equitable obligation or servitude, whereby a landowner’s promise binds a subsequent purchaser or possessor who acquires the land with notice of the promise. Restatement of Property § 539 (1944); Williams, Restrictions On The Use of Land: Equitable Servitudes, 28 Tex.L.Rev. 194 (1949). This attempt must fail for that doctrine has application only to promises respecting the use of land. Montgomery v. Creager, 22 S.W.2d 463, 466 (Tex.Civ.App. 1929, no writ); Restatement of Property, Nature of Promises Respecting the Use of Land, Introductory Note p. 3150 (1944). NCL’s grant of an exclusive franchise cannot be so classified. Enforcement of the exclusive service provision would not have restricted NCL in the use of its real property; whatever the use of the land, NCL’s right under the contract to take or refuse water would have remained unimpaired. At most NCL’s promise limited NCL’s freedom to contract with other suppliers of water and sewer service. Such a limitation affects the use of land only collaterally and will not create an equitable servitude upon the land. We hold, therefore, that Apartments is not bound by the promise of NCL to deal exclusively with Utilities.

THE CONTROVERSY BETWEEN AUTHORITY AND UTILITIES

The Court of Civil Appeals did not find it necessary to determine the validity and status of the contract between Authority and Utilities, because it agreed with Utilities that the absence of indispensable parties deprived the trial court of jurisdiction to render judgment. This holding was premised on the belief that all of the landowners in the 100 acre tract, having contracts with Utilities expressly made subject to the Utilities-Authority contract, were indispensable parties under § 11 of the Uniform Declaratory Judgments Act. Art. 2524-1, Vernon’s Ann.Civ.Stat. Utilities failed to preserve error in this regard by properly challenging by plea in abatement, or other proper pleading, the absence of the landowners or by attempting itself to bring them into the suit. See 1 McDonald, Texas Civil Practice § 3.33 (1965).

Section 11 of the Uniform Declaratory Judgments Act reads in part:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.

We are in agreement with the Court of Civil Appeals that joinder under § 11 of persons “who have or claim any interest which would be affected by the declaration” is mandatory. This is the clear import of the language, the construction supported by the great weight of authority, and the apparent intent of the drafters. See Crickmer v. King, 507 S.W.2d 314 (Tex.Civ.App.1974, no writ); Annot., 71 A.L.R.2d 723, 730-733 (1960); Borchard, The Uniform Act on Declaratory Judgments, 34 Harv.L.Rev. 697, 709 (1921).

We do not, however, agree with the holding of the Court of Civil Appeals (supported by Crickmer v. King, supra) that noncompliance with § 11 uniformly constitutes a jurisdictional defect. Nor do we agree that Rule 39, Tex.R.Civ.P. fashions permissive joinder rules inconsistent with the mandatory joinder requirements of § 11 and therefore inapplicable to actions for declaratory judgment under the holding of Few v. Charter Oak Fire Insurance Co., 463 S.W.2d 424 (Tex.1971), that a procedural rule established by this Court under Article V § 25 of the Texas Constitution must yield to a conflicting statutory enactment. We believe that the principles of § 11 and Rule 39 are compatible.

Subdivision (a) of Rule 39 and § 11 are both mandatory provisions; both provide in slightly different language that individuals claiming an interest which would be affected or prejudiced by the judgment in the case “shall be joined.” The fact that there is no litmus paper test for determining whether a particular person falls within that class of individuals does not render the language of either provision permissive. See Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 204 (Tex.1974). The trial court is not relieved of its duty to effect joinder under subdivision (a) of Rule 39 by the principles found in subdivision (b). Subdivision (b) does not prescribe rules for joinder but rather provides a basis for a determination of whether the action should proceed in the absence of parties described in subdivision (a). The discretion allowed the trial court in this regard is not inconsistent with the general joinder mandate of § 11 or with the provisions of Article 2524-1 as a whole.

Unlike Rule 39, Article 2524-1 does not purport to enumerate the circumstances under which a court should proceed among the parties before it when persons claiming an interest in the subject matter cannot be joined. However, the drafters of Article 2524-1 expressly declared in § 11 that the rights of persons not parties to the proceeding shall not be prejudiced by the declaration of the court and specifically provided that the trial court “may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” Article 2524-1, § 6. Both of these considerations, i.e., the prejudicial effect on the rights of absent persons, and the adequacy of the judgment rendered in their absence are listed in subdivision (b) of Rule 39 as relevant considerations for the trial court.

We reject any construction of Article 2524-1 which would make the decision of the trial court to proceed in the absence of a party (whose interests could be affected by the declaration) fundamental error in all cases. Such an extreme construction would operate to unduly limit the availability of relief between parties having a justiciable controversy capable of complete determination without seriously prejudicing the rights of others. Further it would be hostile to § 12 of Article 2524-1 which declares that the Act should be liberally construed so as to afford relief from uncertainty and insecurity. Finding no substantive inconsistency between Article 2524-1 and Rule 39, we hold that Rule 39 applies to actions brought under the Declaratory Judgments Act and accordingly disapprove of contrary statements in Crickmer v. King, supra.

Viewed from this perspective it seems clear that the presence of the landowners was not so crucial that the judgment rendered in their absence should be vacated. All of the parties to the July 11, 1966 contract were before the court; the controversy between them was capable of complete and final resolution, and no proper complaint concerning their nonjoinder was made in the trial court. See, Cooper v. Texas Gulf Industries, Inc., supra, at 204. Most importantly, the landowners were not parties to the 1966 contract; they were merely parties to contracts made subject to that prior agreement. Clearly their interest was not one which made their presence indispensable. Triton Oil & Gas Corp. v. E. W. Moran Drilling Co., 509 S.W.2d 678 (Tex.Civ.App.1974, writ ref’d n. r. e.); McNeil v. McLain, 272 S.W.2d 573 (Tex.Civ.App.1954, no writ); 3A Moore, Federal Practice ¶ 19.-10, at pp. 2349-2350 (2d ed. 1974) (discussing Federal Rule 19, virtually identical to Rule 39); 7 Wright and Miller, Federal Practice and Procedure § 1613 at pp. 134-135 (1972).

Our holding that the trial court had jurisdiction to render judgment makes it necessary for us to decide those issues which the Court of Civil Appeals did not reach, including those dealing with the validity and status of the 1966 contract between Utilities and Authority.

The primary issue is the duration of the 1966 contract. The rule which we regard as controlling is that contracts which contemplate continuing performance (or successive performances) and which are indefinite in duration can be terminated at the will of either party. See Kennedy v. McMullen, 39 S.W.2d 168, 174 (Tex.Civ.App. 1931, writ ref’d); Tanenbaum Textile Co. v. Sidran, 423 S.W.2d 635, 637 (Tex.Civ.App. 1967, writ ref’d n. r. e.); Sturgeon v. City of Paris, 58 Tex.Civ.App. 102, 122 S.W. 967, 970 (1909, writ ref’d); Byrd v. Crazy Water Co., 140 S.W.2d 334, 336 (Tex.Civ.App.1940, no writ); Tex.Bus. & Comm.Code Ann. § 2.309 (1968); 1 Williston On Contracts § 38 at 115-116 (3d ed. 1957).

We are not unmindful of the fact that in dealing with exclusive franchise or distributorship agreements, which are indefinite in duration and which contemplate the expenditure of substantial sums of money or other investments by one of the parties preparatory to or in accordance with his performance under the contract, the courts often imply a term of reasonable duration during which time the agreement is not terminable at will. See Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12 (1957); 9 Williston On Contracts § 1017A at 150-152 (3d ed. 1967); Gellhorn, Limitations on Contract Termination Rights — Franchise Cancellations, 1967 Duke L.J. 465, 479-480; Annot., 19 A.L.R.3d 196 at 319-324 (1968). We need not decide whether the 1966 agreement falls within this class of contracts for it simply cannot be implied in this case, for reasons set forth below, that the parties agreed to be bound for a reasonable period of time.

Authority is a conservation and reclamation district created pursuant to Article 8280-280 Tex.Rev.Civ.Stat.Ann. (Cum. Supp.1965) as authorized by Article XVI § 59 of the Texas Constitution. As such, it constitutes a political subdivision of the State and operates as a governmental agency performing governmental functions. Willacy County Water Control and Improvement District No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936 (1944); Puryear v. Red River Authority of Texas, 383 S.W.2d 818 (Tex.Civ.App.1964, writ ref’d n. r. e.). Among the powers expressly granted Authority under § 7 of Article 8280-280 is the power to “purchase and construct . or otherwise acquire and accomplish by any and all practical means, waterworks systems [and] sanitary sewer systems, . . . and to operate and maintain same, and to sell water or other services, and to fix rates therefore . . . .” It is further provided that “Authority may exercise any of the rights, powers and authorities granted by this Act within or without the boundaries of Authority . . . .” Authority could not, by contract or otherwise, bind itself in such a way as to restrict its free exercise of these governmental powers, nor could it abdicate its governmental functions, even for a “reasonable time” (found by the trial court to be 14 years and contended by Utilities to be much longer). Banker v. Jefferson County Water Control & Improvement District No. 1, 277 S.W.2d 130, 134 (Tex.Civ.App.1955, writ ref’d n. r. e.); see Texas Power & Light Co. v. City of Garland, 431 S.W.2d 511 (Tex.1968); City of Beaumont v. Calder Place Corp., 143 Tex. 244, 183 S.W.2d 713, 715-716 (1944); City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143, 149-152 (1887). Unless the contract is treated as terminable at will, it would have this impermissible effect and would, as Authority contends, be void ab initio — a result the parties could not have intended.

Similar agreements were held invalid in Fidelity Land & Trust Co. of Texas v. City of West University Place, 496 S.W.2d 116 (Tex.Civ.App.1973, writ ref’d n. r: e.) and Banker v. Jefferson County Water Control & Improvement District No 1, supra. In Fidelity Land & Trust Co., a predecessor in title to the plaintiff, Fidelity, executed a deed in 1942 granting the City a sewer line easement across his property, adjoining but outside of the corporate limits of the City. As part of the consideration the landowner, his “successors and assigns” were granted the right to make connections without charge to the City sewer system and to receive service under the same terms as inhabitants of the City. When Fidelity was denied its request in 1968 to make a connection it brought suit for breach of contract. The court denied relief, holding that the agreement operated to inhibit the municipality in its discretionary control over a governmental function (i.e., the operation of a sewer system) and was therefore unenforceable.

In Banker v. Jefferson County Water Control & Improvement District No. 1, the plaintiff pursuant to a contract with the Jefferson County Water Control & Improvement District No. 1, extended at his own expense a water line from the then existing boundary of the District to a point inside the Lyndale Addition, an adjacent subdivision. The contractual term at issue in the suit provided that the District would have no right to extend service to others outside of the Lyndale Addition without authorization by the plaintiff. The District subsequently annexed the entire area. The plaintiff brought suit to recover for breaches of contract by the District alleged to have occurred both before and after the annexation. The court, noting that the District was authorized by statute to sell any surplus water to lands in the vicinity, held that the District could not bargain away its governmental power to determine to whom and under what conditions it would sell its surplus water.

One of the governmental functions of Authority is the determination of whether, on any particular date, it is in the best interests of all of its customers and the public in general, to extend water and sewer service to a particular person or entity. The agreement between Utilities and Authority obligates Authority to meet all water and sewage treatment needs for Utilities. Additionally, it precludes Authority from extending these services directly to the landowners in the 100 acre tract, under terms and rates that it deems best. The water and sewage rates charged the landowners by Utilities, for example, are not governed by the Utilities-Authority agreement. Thus the agreement has the effect of potentially controlling and embarrassing Authority in the exercise of its governmental powers. We hold that the agreement was not one binding on the parties for a reasonable period of time but was rather terminable at will be either party and was in fact terminated by Authority’s letter of May 2, 1975.

We have carefully considered all of the points of error of all of the parties. Those points of error not discussed herein are overruled.

The Court of Civil Appeals is correct in declaring that Clear Lake Apartments, Inc. is not bound by the exclusive service provision in the November 21, 1967 contract between North Clear Lake Development Corp. and Clear Lake Utilities Co. The Court of Civil Appeals is correct in directing Clear Lake Utilities Co. to take nothing in its action against Clear Lake Water Authority and the City of Pasadena for conspiracy and tortious interference with its contractual relations. The judgment of the Court of Civil Appeals is incorrect in remanding the remaining issue to the trial court for the addition of parties; the judgment is in that respect here modified to declare the contract of July 11, 1966 between Clear Lake Utilities Co. and Clear Lake Water Authority to have been valid and binding on the parties until terminated by Clear Lake Water Authority by its notice of May 2, 1975. As modified, the judgment of the Court of Civil Appeals is affirmed.

      . Rule 39. Joinder of Persons Needed for Just Adjudication.
      (a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.
      (b) Determination by Court Whenever Join-der Not Feasible. If a person as described in subdivision (a) (1) — <2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.
      (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a) (l)-(2) hereof who are not joined, and the reasons why they are not joined.
      (d) Exception of Class Actions. This rule is subject to the provisions of Rule 42.


author: ODOM, Judge. ROBERTS, Judge, PHILLIPS, Judge,

text:
    Kartis EWING, Appellant, v. The STATE of Texas, Appellee.
    No. 51935.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Rehearing Denied May 3, 1977.

      Mary B. Edwards, Andrew L. Jefferson, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Robert N. Ross, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for robbery by assault, an offense prohibited by Art. 1408 of the former Penal Code. His punishment was assessed at ten years’ imprisonment.

On appeal appellant is represented by two attorneys. His trial counsel was appointed to represent him on appeal, and his family retained another attorney for the appeal. The retained attorney’s brief was filed untimely. We shall, however, review the issue raised in his brief as unassigned error in the interest of justice pursuant to Art. 40.09(13), V.A.C.C.P. Long v. State, Tex.Cr.App., 502 S.W.2d 139.

The sufficiency of the evidence is not challenged.

Virgie Hart, the complaining witness, testified that two males entered the Shipley Do-Nuts shop shortly after 10:00 p. m. on November 29,1973. After purchasing some donuts, they returned to their car, a brown 1960 Chevrolet. Appellant then went back into the shop and instructed Hart to open the cash register. According to Hart, the appellant had a blue jean jacket over his right hand. Hart stated she was unable to move because she was “in fear of her life.” The appellant took approximately $30.00 from the register and fled. The police were notified and were given the license number of the Chevrolet, which Hart had written down.

Carolyn Tabors, also an employee of the shop, told substantially the same story as Hart. Both State witnesses identified the appellant as the robber after the police apprehended him and brought him back to the shop.

Appellant’s first ground of error, raised by his attorney appointed at trial, asserts that reversible error was committed when the trial court denied a motion for continuance.

Appellant testified during the trial and denied any participation in the robbery. During cross-examination at the guilt stage of the trial, the appellant stated that he had been mistreated and beaten by the police. He also said that he did not receive medical attention for three days.

Appellant’s counsel informed the court that she was unaware of any mistreatment of the appellant. On the basis of surprise, she requested a continuance in order to secure other defense witnesses. This motion was denied.

We perceive no error. The granting of a motion for continuance after the commencement of a trial is within the sound discretion of the trial court. Stein v. State, Tex.Cr.App., 514 S.W.2d 927; Bradshaw v. State, Tex.Cr.App., 482 S.W.2d 233. Appellant failed to show what witnesses he would have called if the trial had been postponed. Furthermore, there is nothing in the record describing the additional testimony or evidence that would have been offered. See, Silva v. State, Tex.Cr.App., 502 S.W.2d 149. The first ground of error is overruled.

The attorney retained on appeal has raised the issue of the effectiveness of appellant’s retained trial counsel.

For purposes of determining the effectiveness of an attorney’s representation, we have adopted the “reasonably effective” assistance of counsel standard for use in this jurisdiction. Mott v. State, 543 S.W.2d 623, citing Satillan v. State, Tex.Cr.App., 470 S.W.2d 677; Ex parte Prior, Tex.Cr.App., 540 S.W.2d 723; Ex parte Gallegos, Tex.Cr.App., 511 S.W.2d 510. We have also formulated reasonable and flexible rules in order to guide our application of this standard.

First, the sufficiency of an attorney’s assistance must be gauged by the totality of the representation of the accused. Ex parte Prior, supra. In our system of criminal justice an individual is entitled to a fair but not a perfect trial. Isolated failures to object to certain procedural mistakes or improper evidence do not constitute a breach of legal duty by an accused’s attorney.

We also observe that assertions of ineffective counsel shall be sustained only if they are “firmly founded.” Williams v. State, Tex.Cr.App., 535 S.W.2d 352; Faz v. State, Tex.Cr.App., 510 S.W.2d 922. The record must affirmatively demonstrate the counsel’s ineffectiveness.

Finally, we are not in a position to “second guess”, through appellate hindsight, the strategy adopted by counsel at trial. Faz v. State, supra. Trial lawyers occupy the realm of the here and now; they do not possess the luxury of a record to review, nor are they given time to formulate solutions to complex procedural or evi-dentiary issues in the midst of trial. The fact that another attorney may have pursued a different tactical course of trial is insufficient to support a finding of ineffective assistance of counsel.

Appellant asserts that his trial attorney failed to object to the arresting officers’ improper bolstering of the identification testimony entered by Hart and Tabors. The record establishes, however, that the bolstering testimony revealed a discrepancy in the evidence presented by the arresting officers. It is not unreasonable to conclude that the trial counsel’s decision not to object to this testimony may have been supported by valid tactical justifications. Faz v. State, supra. A discrepancy in the State’s evidence was presented by the improper testimony of the arresting officers. Furthermore, the failure to object to every instance of improper evidence does not mean that appellant’s representation was ineffective. See Long v. State, Tex.Cr.App., 502 S.W.2d 139; Roberts v. State, Tex.Cr.App. 493 S.W.2d 849.

This reasoning also applies to the allegations that the trial counsel failed to object when certain hearsay testimony was admitted. Compare, Ruth v. State, Tex.Cr.App., 522 S.W.2d 517.

Appellant also urges that inadequate representation is demonstrated by the trial counsel’s cross-examination of the arresting officers. During this cross-examination, appellant was shown to have been a suspect in two burglaries. The cross-examination of the two officers also established, however, that the appellant had not committed these offenses.

Once again, we have a question of tactics. Faz v. State, supra. Appellant testified in his own behalf that he was at the scene of the offense but did not commit any crime. His testimony indicated that a hitchhiker he had picked up committed the offense alleged in the indictment. Counsel may have attempted to demonstrate that the appellant had been suspected of wrongdoing in the past, but that he had eventually been exonerated. The evidence presented by appellant’s testimony may be regarded as an effort to establish that, once again, the police and the public had suspected the “wrong man.”

We should not, however, attempt to ascertain the specific reason why counsel interrogated the arresting officers in the manner established by the record. Faz v. State, supra. Our duty is to review the totality of the representation and determine whether the appellant has been denied his constitutional right to effective assistance of counsel. Ex parte Prior, supra.

The record does not support the conclusion that appellant’s retained trial counsel breached a legal duty to her client. See, Pete v. State, Tex.Cr.App., 533 S.W.2d 808; Ex parte Hill, Tex.Cr.App., 528 S.W.2d 259. The second ground of error is overruled.

The judgment is affirmed.

ROBERTS, Judge,

dissenting.

The majority holds that “The record does not support the conclusion that appellant’s retained trial counsel breached a legal duty to her client.” (Emphasis added). I dissent.

The majority’s conclusion furthers the obscurity in our decisions related to claims of ineffective assistance. See, Williams v. Estelle, 416 F.Supp. 1073 (N.D.Tex.1976). The “breach of a legal duty” standard is generally applied to claims of ineffective retained counsel, Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976), while the “reasonably effective assistance” standard is generally applied to claims of ineffective appointed counsel. Ex Parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974).

There should be no distinction made between retained and appointed counsel, and neither should render “inadequate representation.” See, Rockwood v. State, 524 S.W.2d 292, 294 (Tex.Cr.App.1975). Both retained and appointed counsel should be “reasonably competent.” Ex Parte Gallegos, supra, at 513 (concurring opinion).

When the trial judge appoints a lawyer to represent a person accused of committing a crime, he simply fulfills the constitutional mandate; he does not by his affirmative action, as some prior decisions indicate, create a different standard of competency than the standard created if the individual himself had the wherewithal to hire the lawyer. While economic status may differ from individual to individual, the right to due process should remain the same. The fact that the defendant can pay a fee should not alter this Court’s interpretation of his right to counsel. All individuals should stand equal before the law, regardless of economic status.

Aside from noting the above, I concur wholeheartedly in the dissenting opinion of Judge Phillips. The extraneous offenses were developed at length by the questioning of appellant’s own counsel. I realize that “There are some cases that cannot be won” and that “An attorney must appraise a case and do the best he can with the facts.” Rockwood, supra, at 293. It is equally clear to me that some actions cannot be deemed “trial strategy.” Indeed, even the learned trial judge had to inquire of appellant’s trial counsel at one point whether she was talking about “this particular offense.”

The “breach of a legal duty” is not the test. Appellant was furnished with “inadequate representation.” Rockwood, supra, at 294. I cannot in good faith say that appellant’s representation at trial passes the “reasonable competence” test. Ex Parte Gallegos, supra, at 513 (concurring opinion, and cases there cited).

PHILLIPS, Judge,

dissenting.

I cannot agree that admission of evidence showing appellant had twice been picked up by police officers for suspicion of burglary is “a question of tactics” in light of the record here presented. On direct examination Officer Cashion testified the license number relayed by Hart was checked out. He said, “We called the burglary and theft division that we had the car picked up approximately four days prior to that”. The failure to object to this statement would not be sufficient to support a finding that trial counsel was ineffective. See Long v. State, supra. However, the details were then brought out on cross examination by appellant’s counsel and Cashion testified:

“Q [DEFENSE COUNSEL]: You mentioned earlier that you had previously had some information on a make. For the purpose of the jury, that means that this car had been reported some other way, right?
A Right.
Q Would you explain what you mean by ‘make’ to the jury?
A How we obtain the license number.
Q You had had a make previously on this car, what do you mean?
A We had picked it up for investigation of a burglary.
Q This car?
A Yes, ma’am.
Q When?
A Back on the 25th of November, 1973.
Q Was Mr. Ewing involved?
A Yes, ma’am; he was.
Q You say Mr. Ewing was involved in a burglary?
A We are saying we questioned him about a burglary.
Q Was his car involved in a burglary? Was it positively—
A We had it picked up for investigation of a burglary.
Q Was it positively identified as being involved in the burglary?
A Not at that time it wasn’t. It was at the scene, though.
Q Was Mr. Ewing in the car on the 25th?
A No ma’am; he wasn’t in the car.”

Officer Davis explained the incident more fully during cross examination:

“Q [DEFENSE COUNSEL]: How did you happen to go to Ringold and Prosper?
A First of all, we had a license plate number. I asked the dispatcher — I can’t remember which one of us did — got on the radio and got him to trace the registration on the car and it was registered to one Chris Leblanc who lived on — I can’t remember the exact number. I think it is 1046. It was at about the intersection of Wheatley and South Victory. We proceeded to that house and talked to Chris Leblanc’s mother who stated that her son had sold the car to Mr. Ewing, I think, two months earlier.
We then asked her if she knew where he lived. I can’t remember whether she knew where he lived or not. From her house I called the burglary and theft division because we had the same car with the same license number towed off on the 28th from the scene of a burglary. Down at burglary they have a little card that stated who claimed the car. We put a ‘hold’ on the ear for burglary and theft and before the man who wanted the ear could get it out — it was out at the prisoner’s lot is where it was — before he could get it released, he would have to get a release from the burglary and theft division and have to prove by means of registration that it was his car and prove who it was and it turned out it was the Defendant, Kartis Ewing, that got the car released from the burglary division.
Q Did you find out that this car had actually been involved in a burglary?
A Did I find out it was? We believed it was but we were not sure. We also apprehended Mr. Ewing at the scene of a burglary but since the car that we found there was a suspicious car, the only car there, it was some model homes, there was one or two trucks that blocked — I don’t remember who built — let’s say Suburban Homes, everybody knows them— one of the Suburban Company trucks were there and there was a passenger car parked on the other side of the lot. We had it picked up and towed off in case it was. Then I saw Mr. Ewing walking down toward the freeway shortly after we had made the burglary call there and so I arrested him for suspicion then but he was released at the scene since the car was not registered to him at that time.
Q You never took him to the police department?
A Not on the burglary we didn’t. We didn’t have enough evidence to think that we could.
Q Did you find that the car had been reported stolen?
A No, ma’am; it hadn’t been reported stolen.
* * * * * *
Q You told me he was not handled for burglary?
A He was picked up for suspicion of burglary the 15th of November for burglary of an apartment. He has the I.D. number from that case.
Q You told me you didn’t take him—
A This is not the same burglary, this is another burglary. This is on the 15th. The time we picked him up that we arrested him at the scene was the 25th of November. On the 15th of November he was also handled by another set of officers for burglary of an apartment but he was released with no charge . . .”

The harmful effect of these two prior incidences was compounded on cross examination of appellant as follows:

“Q [PROSECUTOR]: Mr. Ewing, you have been breaking the law for some time now, haven’t you?
A No, I haven’t.
2 And finally you got caught red-handed is what happened in this case, isn’t it?
A No.”

Thus, the jury heard that appellant had been handled by the police on two occasions for suspicion of burglary. The foregoing testimony makes it clear appellant was not shown to be the person who committed these burglaries, thus the two burglaries were not admissible as extraneous offenses committed by the appellant. See Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97; Ford v. State, Tex.Cr.App., 484 S.W.2d 727. As pointed out by counsel for the State during cross examination of appellant, the testimony concerning the two burglaries showed appellant to be of bad character, or a criminal generally. This testimony was obviously prejudicial in view of the fact that appellant was 18 years of age at the time of trial and had never been convicted of an offense.

We are not here presented with acts of omission by counsel, such as failure to call witnesses, see Jones v. State, Tex.Cr.App., 501 S.W.2d 677; including the accused, Sims v. State, Tex.Cr.App., 546 S.W.2d 296 (Decided January 26, 1977); failure to vigorously cross examine witnesses, Rockwood v. State, 524 S.W.2d 292; failure to make closing argument, Ransonette v. State, Tex.Cr.App., 550 S.W.2d 36 (Decided October 6, 1976); or failure to object to the admission of evidence, Nichols v. State, Tex.Cr.App., 500 S.W.2d 158. Such omissions may be due to trial strategy.

The improper, irrelevant and prejudicial testimony was injected into the case through the actions of appellant’s trial counsel. To construe such action as trial strategy implies counsel was thoroughly familiar with the details of the two prior incidences. It is fundamental that an attorney must acquaint himself with the facts and law of the case before he can render reasonably effective assistance of counsel. Caraway v. Beto, 421 F.2d 636 (5th Cir. 1970); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974); Gomez v. Beto, 462 F.2d 596 (5th Cir. 1972).

I would hold that the introduction and further development of this prejudicial testimony by appellant’s counsel amounts to a breach of a legal duty and denied appellant reasonably effective assistance of counsel as provided for in the Sixth Amendment of the U.S. Constitution and Art. I, See. 10 of the Texas Constitution. For this reason, I respectfully dissent.