author: McDONALD, Chief Justice.

text:
    AIR SHIELDS, INC. and Southmore Hospital and Clinic, Inc., Appellants, v. Sherry SPEARS, Individually and as Next Friend of Russell Alan Spears, a Minor, Appellee.
    No. 6026.
    Court of Civil Appeals of Texas, Waco.
    Oct. 18, 1979.
    Rehearing Denied Nov. 29, 1979.

      Donald B. McFall and Richard A. Sheehy, Butler, Binion, Rice, Cook & Knapp, Houston, for Southmore Hospital and Clinic, Inc.
    Donald R. Hallmark and Susan Crowley, Boswell, O’Toole, Davis & Pickering, Houston, for Air Shields, Inc.
    Jim M. Perdue, Andrew L. Todesco and J. Richard Cheney, Miller, Gann & Perdue, Houston, for appellee.
    E. P. Dee, Houston, guardian ad litem.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Air Shields and Southmore Hospital from $1,173,334. judgment against them in favor of minor plaintiff Russell Alan (Rusty) Spears.

Sherry Spears as next friend of her minor son Rusty Spears sued Air Shields and Southmore for damages resulting from permanent blindness sustained by the minor plaintiff as a result of medical care rendered following his birth on April 27, 1970. Plaintiff had previously settled with the attending physicians for $100,000., expressly reserving his claims against all others.

Plaintiff alleged: Rusty was born in Southmore Hospital on April 27, 1970; was premature; of 32 weeks gestation period; weighed 2 pounds 3 ounces; that following birth he was placed under the care of Dr. Rothenberg who was covering for Dr. Don-caster who was out of town; that Rusty was immediately placed by the hospital personnel in an incubator which was designed, manufactured and sold by Air Shields; that the care of the infant remained in the hands of Dr. Rothenberg and the personnel of Southmore Hospital through May 5, when Dr. Doncaster returned; while in the incubator from April 27 to May 6, Rusty was administered oxygen of 32% to 40% on a continuous basis; resulting in his developing retrolental fibroplasia (RLF) which rendered him totally and permanently blind. Plaintiff further alleged: the amount and duration of oxygen administered through the incubator was determined by the physician, nurses and technicians in charge of his care, and in order to safely use the incubator they had to rely on their training as well as information supplied by Air Shields with the incubator; the incubator saves the life of many prematurely born infants by providing them supplemental oxygen, but supplemental oxygen can cause RLF and blindness in the premature infant; it was formerly believed that oxygen was safe if kept below 40%; but research in 1967 and 1968 determined there was no safe percent; and that duration of exposure was also a factor in bringing about RLF; Air Shields sold the incubator to Southmore in 1968; Air Shields knew as of 1967 or 1968 that oxygen concentrations of 30% to 40% could and would cause RLF if maintained for a sufficient period of time; and knew that infants being placed in incubators were developing RLF and being blinded; yet Air Shields failed and neglected to advise purchasers and users of its incubators of these facts. Plaintiff further alleged: South-more through its medical staff knew of the foregoing but failed to adopt any procedure as a part of its nursing or pediatric unit to insure that no standing order for oxygen in quantities of 32% to 40% were written or permitted to continue in effect in the absence of respiratory difficulty of the infant.

Plaintiff alleged Air Shields’ failure to provide warning and Southmore’s failure to have proper procedures were causes of Rusty’s contraction of RLF, blindness and damage.

Air Shields filed third party action against Drs. Rothenberg and Doncaster alleging the doctors were well aware of the risks and benefits from the administration of oxygen of various concentrations and for various durations to a premature infant, and that their negligence caused the minor plaintiff’s blindness and damage.

Trial was to a jury pertinent findings of which are summarized as follows:

3) Air Shields was negligent in failing to furnish with its incubators appropriate warnings relating to the risks of the giving of supplemental oxygen.
4) Such negligence was a proximate cause of Rusty Spears’ blindness.
5) Southmore Hospital was negligent in its policies and procedures in 1970 regarding the administration of supplemental oxygen to premature infants.
6) Such negligence was a proximate cause of Rusty Spears’ blindness.
9) Dr. Rothenberg was negligent in his diagnosis and/or medical care and treatment of Rusty Spears after his birth.
10) Such negligence was a proximate cause of the blindness of Rusty Spears.
11) Awarded $100,000. for special training and education for Rusty Spears in the future until age 18.
12) a) Awarded $100,000. for mental suffering and physical disfigurement in the past.
b) Awarded $900,000. for mental suffering and physical disfigurement in the future.
13) a) Awarded $500,000. for loss of future earnings.
b) Awarded $10,000. for loss of ability to care for and manage his own affairs in the past.
c) Awarded $250,000. for loss of ability to care for and manage his own affairs in the future.

The trial court disregarded the jury’s answer of $100,000. for Rusty’s special education on the basis such damages could only be recovered by the parent who was barred by limitations. The court further reduced the award ($1,760,000.) by ⅛ on the basis of the jury’s findings of negligence against Dr. Rothenberg, and rendered judgment for plaintiff for $1,173,334. jointly and severally against Air Shields and Southmore. The judgment further set the fee of the Guardian Ad Litem, who was appointed by the court to represent Rusty, at $15,000. and taxed same as costs, and assessed all costs jointly and severally against Air Shields and Southmore.

Both Air Shields and Southmore Hospital appeal.

Air Shields’ Appeal

Air Shields appeals on 67 points which we summarize as 7 principal contentions.

Contention 1 asserts there is no evidence and/or insufficient evidence to support the jury’s answers to Issues 3 and 4, and that such answers are against the great weight and preponderance of the evidence.

Issues 3 and 4 found Air Shields negligent in failing to furnish with its incubators warnings relative to the risks of giving supplemental oxygen, and that such was a proximate cause of Rusty Spears’ blindness.

The incubator was manufactured and sold to Southmore in 1968. The incubator provides an environment for a premature infant. It controls the temperature, the humidity, and permits oxygen to be either at room air concentrations (about 20%) or increased. The incubator has an oxygen limiter, which prevents the concentration of oxygen from exceeding 40% unless a red flag device on the incubator is raised.

Rusty Spears was born April 27, a premature infant (28 to 32 weeks gestation instead of the normal 40 weeks), and weighed 2 pounds 3 ounces. The incubator and supplemental oxygen permit many premature infants to live who would otherwise die, but too much oxygen causes RLF and blindness in the infant. Formerly less than 40% oxygen was believed safe, but in 1967 or 1968 Air Shields learned there was no safe level and that duration of exposure to oxygen as well as concentration was a factor in causing RLF. Air Shields provided a brochure containing instructions for the safe operation and use of its incubator to each purchaser, but nowhere in the instructions is there a reference to RLF or to the safety, or non safety, of any particular concentration of oxygen, or duration of exposure, nor was any warning placed on the incubator itself. Air Shields expected its brochure would be read by all nursing supervisors, attending physicians and all users of the incubator. There is evidence Air Shields knew that many users of its incubators believed oxygen concentrations of less than 40% were safe and could be given routinely without clinical need. There is evidence that it is both feasible and appropriate for the manufacturer to provide, in its manual or on the machine, medical facts and information relating to the proper use of the machine, consistent with the medical facts as they were known, to insure the machine would not be used in a manner to produce RLF. There is evidence that RLF is usually caused by giving a premature infant oxygen; that excessive oxygen is a significant factor in causing RLF; that oxygen such as received by Rusty would be calculated to produce RLF; that Rusty’s blindness was caused by exposure to oxygen; that Rusty’s blindness was caused by the oxygen administered during the first days of his life.

And there is evidence a manufacturer is uniquely situated to appreciate the medical risks inherent in the use of its machine; that warnings on medical appliances can act as a reminder to the doctor or hospital; they can tell them something they do not know; or stimulate a further inquiry. Dr. Rothenberg testified when presented with a warning similar to one later given by Air Shields and similar to one proposed by Dr. Hyman: “Well I certainly wouldn’t have ignored a message like that”, and would have adhered to or at least looked into the matter further.

Every manufacturer has a duty to warn of dangers in the use of its product. Bristol-Myers Co. v. Gonzales, Tex., 561 S.W.2d 801; Crocker v. Winthrop Labs., Tex., 514 S.W.2d 429; Bituminous Cas. Corp. v. Black & Decker Mfg. Co., (Dallas, Tex.Civ.App.) NRE, 518 S.W.2d 868.

Proximate causation may be established by circumstantial evidence. Farey v. M M Cattle Co., Tex., 529 S.W.2d 751. The jury is the judge of the facts and circumstances proven and may draw reasonable inferences and deductions from the evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273. The question of proximate causation is one for the jury to determine from all the facts and circumstances proved, and broad latitude is allowed jurors to infer proximate cause from the circumstances surrounding an event. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792.

We think the evidence ample to sustain the jury’s answers to Issues 3 and 4, and that such findings are not against the great weight and preponderance of the evidence.

Contention 2 asserts the trial court erred in permitting plaintiffs’ attorney to question the witness Andreasen as to whether other infants placed in Air Shields’ incubators had developed RLF.

Counsel for plaintiffs asked the witness Andreasen, an employee of Air Shields, whether other infants placed in Air Shields incubators had developed RLF. Air Shields moved for a mistrial on grounds the question violated its Motion in Limine which the court had granted and which forbade the mentioning of “other claims made against [Air Shields] or has ever been involved in any other litigation besides the instant suit * * * »

The trial court instructed the jury the question could be considered only insofar as it might have a bearing on Air Shields’ notice, but would not be considered for the truth of the matter.

We think the evidence admissible, limited by instruction to the question of notice, and later introduced without objection from a different witness.

Contention 3 asserts the trial court erred in allowing the witness Hyman to testify that it was appropriate in 1968 to put a warning in the incubator instruction manual as to the risks of RLF; and in allowing him to testify as to a suggested form of warning.

Dr. Hyman is an associate professor of bioengineering at Texas A & M University; he holds a doctor of science degree in bioengineering which is the application of principles of engineering to medical problems; and is concerned with designing medical equipment and working in consultation with hospitals to aid them in purchasing and using equipment. Over objection he was permitted, to testify that it would have been appropriate for Air Shields to place a warning concerning RLF and oxygen administration on its incubator in 1968; and testified to a proposed warning which he stated would have been feasible for Air Shields to place on its incubator.

The competency of an expert witness is left to the sound discretion of the trial court. Simpson v. Glenn, (Amarillo, Tex.Civ.App.) NRE, 537 S.W.2d 114; Texas Whse. Co. v. Springs Mills, Inc., (Waco, Tex.Civ.App.) NRE, 511 S.W.2d 735. The trial court has wide discretion, which may not be disturbed in the absence of clear abuse, in determining whether to admit conclusions and opinions of expert witnesses. Green v. Houston Belt & Terminal Ry. Co., (14 Houston, Tex.Civ.App.) 558 S.W.2d 127.

We cannot say the trial court erred in admitting the complained of testimony of Dr. Hyman.

Contention 4 asserts there is no evidence and/or insufficient evidence to support the jury’s answers to Issues 11,12 a) b) and 13 a) b) and c); that such answers are against the great weight and preponderance of the evidence; and that the jury’s answers to 12 a) b) and 13 a) b) c) are excessive.

Issue 11 awarded $100,000. for special training and education for Rusty until age 18; Issue 12 a) awarded $100,000. for past and b) awarded $900,000. for future mental suffering and physical disfigurement; 13 a) awarded $500,000. for loss of future earnings; b) awarded $10,000. for loss of past ability to care for and manage his own affairs, and c) awarded $250,000. for future loss of ability to care for and manage his own affairs.

As noted the trial court disregarded Issue 11.

Rusty Spears was blinded at birth and will be blind for his entire life. Loss of sight is loss of the most substantial part of an individual’s perception of the world. In a visually oriented world simple tasks for .the sighted become major obstacles for the blind—dressing, eating, moving about in public, catching a bus, distinguishing objects. Blind persons earn substantially less than sighted persons. Of the 20,000 to 30,-000 jobs available, the blind person is qualified for only about 200 of thém. There is evidence Rusty would have a future loss of earning capacity of $1,939,546.

The amount of damages to be awarded for personal injuries is primarily a question for jury determination. G.C. & S.F. Ry. Co. v. Hampton, (Eastland, Tex.Civ.App.) NRE, 358 S.W.2d 690; and the jury has large discretion in fixing such awards. Southern Pac. Transp. Co. v. Pera- lez, (Corpus Christi, Tex.Civ.App.) NRE, 546 S.W.2d 88.

We think the evidence ample to sustain Issues 12 a) b) and 13 a) b) c) and that such are not against the great weight and preponderance of the evidence; and are not excessive. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Contention 5 asserts the trial court erred in admitting into evidence motion pictures of Rusty Spears because their prejudicial effect clearly outweighed their relevancy to any issue and their admission denied Air Shields a fair trial.

The motion picture films admitted over Air Shields’ objections show Rusty when he was 2 and 6 years old, and run for approximately 15 minutes. The pictures show Rusty getting around in the house and in the yard. The pictures are factual and bore directly on questions concerning his life as a blind person, and in no way could be calculated to improperly influence the jury.

The general rule is that pictures or photographs that are relevant to any issue in a case are admissible. Texas Employers Ins. Ass’n v. Agan, (Eastland, Tex.Civ.App.) er. ref., 252 S.W.2d 743. And the trial judge is afforded wide discretion in determining the admissibility of photographs and motion pictures. City of Fort Worth v. Barlow, (Ft. Worth, Tex.Civ.App.) NRE, 313 S.W.2d 906. Texas Law of Evidence, McCormick & Ray, Sec. 1465.

The motion pictures were properly admitted.

Contention 6 asserts that plaintiffs’ counsel’s argument to the jury in 15 instances were so improper that it could not be cured by instruction. Air Shields’ brief states “appellants recognize that some of the matters set forth as separate points of error on the issue of argument probably do not constitute reversible error when considered by themselves” but assert the argument as a whole was so inflammatory and prejudicial that its effect could not have been cured by an objection and instruction by the trial court.

Without detailing the argument complained of, we think from the record as a whole the argument complained of was neither improper nor prejudicial, was largely unobjected to, and in any event it was unlikely the jury was so influenced by the argument that it returned a verdict which it otherwise would not have returned.

Contention 7 asserts the trial court erred in overruling Air Shields’ motion to dismiss for the reason this action is barred by the judgment entered in the prior case of “Alan B. Spears, individually and as next friend of Russell Alan Spears, a minor v. Dr. Lionel H. Rothenberg, et al.”

In 1972 the minor plaintiff through his father as next friend filed suit against Dr. Rothenberg and Dr. Doncaster asserting negligence in administering oxygen after Rusty’s birth causing his blindness. Such suit was compromised and settled for $100,-000. The agreement was that plaintiff would give the doctors a complete release for the $100,000. of liability insurance available, but would maintain all causes of action against anyone else. A guardian ad litem was appointed for the minor, and a hearing held before the trial judge, which entered a judgment for the minor plaintiff for the $100,000. The release of judgment specifically reserves all claims- against all parties other than the two doctors. The judgment and release of judgment were both accomplished at the same time on the same day. It was not the intent to release anyone other than the two doctors, nor was it intended that $100,000. would represent all of Rusty’s damages.

Had plaintiff not been a minor and released his claim against the two doctors named in such release, specifically reserving all claims against others, claims against others would not have been released. McMillen v. Klingensmith, Tex., 467 S.W.2d 193.

And where a minor (through next friend and attorney ad litem) settles a claim against a tort-feasor, reserving all claims against joint-feasors in the release, the release will be construed with the formal court judgment, and claims against those not released will not be barred. Brightwell v. Rabeck, (Ft. Worth, Tex.Civ.App.) 430 S.W.2d 252; Rexroat v. Prescott, (Amarillo, Tex.Civ.App.) NRE, 570 S.W.2d 457; Leong v. Wright, (14 Houston, Tex.Civ.App.) 478 S.W.2d 839.

Thus, our situation is totally distinguishable from the facts in T. L. James & Co., Inc. v. Statham, Tex., 558 S.W.2d 865 where a prior judgment obtained in a contested trial against a tort-feasor, was held to bar subsequent suit against a joint tort-feasor.

All of Air Shields’ points have been considered and are overruled.

Southmore Hospital’s Appeal

Southmore appeals on 38 points which we summarize as 8 principal contentions.

Contention 1 asserts there is no evidence to show the specific policies and procedures which were in effect in the hospital nursery in 1970.

A copy of the written policies and procedures in 1970 was not available but there was evidence that the policies and procedures in effect in the hospital nursery regarding the administration of supplemental oxygen to premature infants were: 1) An order for administration of oxygen is given by phone or written by the physician. 2) In an emergency oxygen may be started by the nurse in charge, who notifies the physician and receives an order to continue its use. 3) Oxygen concentrations to be kept at 40% or below less otherwise specified by the physician.

There is evidence to show the policies and procedures in effect in the hospital nursery in 1970, regarding the administration of oxygen to premature infants.

Contention 2 asserts there is no evidence and/or insufficient evidence to support the jury’s answers to Issues 5 and 6.

Issues 5 and 6 found the hospital was negligent in its policies and procedures in 1970 regarding the administration of supplemental oxygen to premature infants; and that such was a proximate cause of Rusty’s blindness.

There is evidence that the purpose of policies and procedures in the nursery as applicable to this case was to establish minimal rules for the care of the infant, to advise doctors and nurses of hazardous procedures, to provide for safety of the infant, and to serve as a reminder to the nurse or doctor.

Southmore’s policies and procedures in 1970 regarding the administration of oxygen to premature infants was basically that no oxygen should be administered (except in emergency) unless ordered by a physician, and that oxygen concentration should be kept at 40% or below unless otherwise ordered by the physician.

There is no evidence that other hospitals in Houston in 1970 had a policy similar to Southmore’s; and there is evidence that two other hospitals in Houston in 1970 had policies designed to avoid the routine administration of oxygen.

The oxygen administered to Rusty by Dr. Rothenberg was in keeping and consistent with Southmore’s policies in effect in 1970. Medical knowledge as of 1970 knew that duration of exposure was as dangerous as percentage — that there was no safe percentage — and that oxygen should not be routinely given.

We think the jury authorized to answer Issues 5 and 6 as they did; that there is_ evidence to sustain such findings; and that same is not against the great weight and preponderance of the evidence, In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Contention 3 asserts there is no evidence and/or insufficient evidence that supplemental oxygen was a proximate cause of Rusty’s injury.

Dr. Silverman, a pediatric opthalmologist, testified Rusty is permanently and completely blind because he was exposed to oxygen higher than room concentrations; and Dr. Doncaster testified that Rusty’s blindness was caused by the oxygen administered during the first days of his life. While there was evidence that there could have been other causes we think the evidence ample to sustain the jury’s answer to Issue 6.

Contention 4 asserts the trial court erred in admitting into evidence the motion pictures of Rusty; contention 5 asserts the argument of plaintiffs’ counsel so improper and prejudicial the hospital was denied a fair trial; contention 6 asserts the' trial court erred in denying Southmore’s motion to dismiss since plaintiffs’ cause of action was barred by a previous judgment; and contention 7 asserts there is no evidence and/or insufficient evidence to sustain the damage issues, and that the damages awarded are excessive.

These contentions have been fully discussed in connection with- Air Shields’ appeal.

Southmore’s contentions 1 through 7 (all points except 32) are overruled.

Contention 8 (point 32) asserts the trial court erred when it denied the Hospital’s motion for full indemnity from Air Shields, since Air Shields failed to warn the hospital of dangers inherent in the use of its machine.

This case arose before the adoption of the comparative negligence statute (Article 2212a).

Where there are two tort-fea-sors as here, both of whom are liable to the injured plaintiff, but one of whom has breached a duty he owed both to his co-tort-feasor and to the injured plaintiff, then the tort-feasor, who to his co-tort-feasor is blameless, should be allowed indemnity. Air Shields was found liable for failing to warn the users of the incubator (which included Southmore) of the dangers involved in the administration of supplemental oxygen. The manufacturer owed a duty to the hospital, as purchaser of the incubator, to warn of dangers in the use of the machine. Bristol-Myers v. Gonzales, Tex., 561 S.W.2d 801. There is evidence that the hospital’s policies and procedures were dependent in part on the information received from the manufacturer of the medical equipment. Southmore is entitled to recover indemnity against Air Shields. Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563; General Motors Corp. v. Simmons, Tex., 558 S.W.2d 855; Butler v. Henry, CCA (Waco) 589 S.W.2d 190.

Contention 8 (point 32) is sustained.

The minor plaintiff brings forward 5 cross points all of which have been considered and are overruled.

The minor plaintiff’s joint and several judgment against Air Shields and South-more Hospital is affirmed. The judgment is modified, to decree Southmore Hospital indemnity against Air Shields.

MODIFIED AND AFFIRMED.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Patricia K. MUSICK, Appellant, v. Horace G. MUSICK, Appellee.
    No. 1275.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 18, 1979.

      Alfred H. Summers, Summers, Summers & House, Palestine, for appellant.
    Horace Musick, pro se.
   McKAY, Justice.

This is a divorce case. The wife, as appellant, complains that the trial court erred in dividing the property, in failing to provide for the support of the three minor children, in refusing to re-open the case for additional evidence, and in refusing to allow appellant to take a non-suit.

Appellant sued for a divorce, a division of community property, and specifically requested the court to award her the home situated at Route # 1, Grapeland, Texas. The trial court granted the divorce, divided the property, named appellant the managing conservator and appellee possessory conservator of the three minor children, and made no provision for support of the minors by appellee. The trial court found that appellee was totally disabled, and therefore was not required to pay child support, and that appellant received Social Security payments on behalf of the children for child support. At the time of trial all three minors were under ten years of age.

Appellant complains of the refusal of the trial court to permit her to re-open the trial for further evidence. On May 29, 1978, the trial court advised counsel by letter what his judgment would be and requested a formal decree be prepared. On August 10, 1978 appellant’s counsel filed a motion styled “Motion to Disregard And/Or Amend the Court’s Memorandum of May 29, 1978.” Such motion was sworn to by appellant’s counsel, and it stated that (1) after the trial court heard the case on the merits, and prior to the court’s memorandum of May 29, 1978, appellee, without authority of petitioner, took the 1952 Chevrolet automobile and caused or allowed it to be damaged in such condition that it would not run; (2) the mobile home was taken into custody by the First State Bank of Grapeland prior to May 29, 1978, because appellee had failed to make the monthly payments as previously ordered by the court; and (3) since the trial the Veteran’s Administration had re-evaluated appellee’s disability and reduced his disability rating from appellee’s testimony at the trial. Such motion prayed for judgment, and alternatively prayed that the cause be reopened, or upon the failure of the court to do either, that appellant be granted a non-suit.

Rule 270, T.R.C.P., provides in part: “[a]t any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice.” The standard of review under Rule 270 is that the question of re-opening a case for the purpose of admitting additional testimony is clearly within the sound discretion of the trial court, and its action refusing to permit a party to re-open for such purpose should not be disturbed on appeal unless it clearly appears that such discretion has been abused. In the Matter of the Marriage of Murphy, 561 S.W.2d 592, 593 (Tex.Civ.App. —Amarillo 1978, no writ); Kroger v. Cellan, 560 S.W.2d 505, 509 (Tex.Civ.App.— Tyler 1977, writ ref’d); 3 McDonald Texas Civil Practice, Sec. 11.24. The discretion of the trial court should be liberally exercised in the interest of justice, and an improper exercise of discretion is prejudicial error. In the Marriage of Murphy, supra; McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299, 305 (Tex.Civ.App. — Dallas 1968, writ ref’d, n. r. e.); Canyon Credit Union v. Coleman, 450 S.W.2d 368, 369 (Tex.Civ.App. —Amarillo 1970, no writ).

It is our view that the trial court abused its discretion in refusing to permit the re-opening of the case to allow appellant to present evidence, if she could, that the mobile home had been repossessed by the bank, and the Chevrolet automobile would not run. In addition, the sworn motion to re-open stated that appellee’s physical disability had been re-evaluated and his disability reduced. These facts had developed after the trial but before judgment, and would directly affect the proper and fair division of the property between the parties. We sustain this point.

Appellant also complains that the trial court refused to permit her to take a non-suit. Prior to January 1, 1976, a plaintiff could take a non-suit “[a]t any time before the jury has retired,” or in a non-jury case “at any time before the decision is announced,” Rule 164, T.R.C.P. However, since the effective date of the amendment to Rule 164, January 1, 1976, a plaintiff may take a non-suit at any time before he has rested in his case-in-chief and not afterward. Coker v. Mitchell, 535 S.W.2d 175, 176 (Tex.1976). This point is overruled.

The next complaint appellant makes is that the division of the community property by the trial court was so disproportionate as to be manifestly unjust as to amount to an abuse of discretion. We sustain this point.

The trial court found the following to be all of the community property, and divided it with values stated as follows:

Appellant
Assets
Mobile home $ 3,000
Horse and trailer 250
Household furniture 1,000
Automobile 700
Judgment against Appellee with interest at 8% payable on or before 5 years from date of judgment 13.000
Total Assets to Wife $17,950
Liabilities
Note on mobile home $ 880
Total Liabilities to _
Wife $ 880
Net to Wife $17.070
Appellee
Assets
84-acre tract of land $ 42,000
White Spot Bldg. 2,000
Owen real estate note 27,400
Truck, tractor and trailers 1,230
Horses and cattle 6,925
Interest in Woodville Truck
Stop _250
Total Assets to Husband $ 79,805
Liabilities
Note on 84-acres $ 17,000
Note on truck 4,700
Cattle notes 17,755
Co-op notes 2,861
4,910
Medical debts 2,344
State Comptroller Lien 136
Judgment to Wife 13.000
Total Liabilities to $ 62,706 Husband
Net to Husband $ 17.099

Sec. 3.63 of the Family Code provides that in a divorce judgment the trial court shall divide “the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” It has long been the rule in Texas that trial courts have broad discretion in dividing the estate of the parties in a divorce action and a case will not be reversed on appeal unless there is a clear abuse of discretion. McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex.1976); Coekerham v. Coekerham, 527 S.W.2d 162 (Tex.1975); Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974); Merrell v. Merrell, 527 S.W.2d 250, 255 (Tex.Civ. App. — Tyler, 1975, writ ref’d n. r. e.). Such division does not have to be made equally, but such discretion is not unlimited and cannot be used inequitably. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (Tex. 1923); Bell v. Bell, supra; Bokhoven v. Bokhoven, 559 S.W.2d 142 (Tex.Civ.App.— Tyler 1977, no writ); Hooper v. Hooper, 403 S.W.2d 215 (Tex.Civ.App. — Amarillo 1966, writ dism’d).

We are of the opinion that the property division made by the trial court is inequitable and manifestly unjust and unfair, and that the trial court abused its discretion in such division. The trial court awarded all the real estate, the real estate note, all the cattle, all horses except one, a truck, tractor and trailers, and a building to appellee husband. Appellant wife received a mobile home (which apparently was repossessed), household furniture, an automobile (apparently not usable), and a judgment payable in 5 years against appellee husband for $13,000. While the court found the appellee to be totally disabled there is no finding that such disability is permanent. The record shows appellee has worked some since his injury. The 84 acre farm which was the homestead was being used for pasture for cattle and horses, and had a potential for future income. The record indicates the number of cattle had increased and were sold each year, and that the payments to appellee monthly on the Owen note were almost as much as the payments required by the note on the 84 acre tract. While appellee has numerous debts he also has received all the productive assets, and appellant’s principal asset is a $13,000 judgment against appellee. From the record it appears doubtful that appellant would ever realize any money from the items awarded to her inasmuch as the record reflects that appellee has not been a good manager, and the principal assets all have prior liens. We recognize that the trial court has wide discretion in dividing property between spouses, but we conclude that the court’s action here resulted in an unfair and unjust disposition, without due regard for the rights of each party and the children, and we sustain this point.

Closely related to the question of the division of the property is appellant’s final point wherein she complains that the trial court erred in failing to require appel-lee to provide for the support of the minor children. The trial court judgment provided that “Petitioner (appellant) is to receive payments made by the Social Security Administration on behalf of the children as child support. It is further ordered that no additional child support payments shall be made, subject to the further orders of this court.” According to the record appellee was receiving approximately $600- per month from combined payments from the Veteran’s Administration and Social Security, from which appellant was to receive $198 per month from Social Security for the children. Appellee testified that his payments would be reduced some when the divorce became final. Appellant testified she had been working at the newspaper office in Palestine making $102 per week.

The best interest of the child should be the primary consideration in determining questions of conservatorship and support, as well as division of the property. Family Code, Sec. 14.07. Each parent has an obligation to support the children of a marriage commensurate with his or her circumstances. While appellee may be limited in the amount he could or should contribute to the support of the children at this time, the total burden of support should not be upon appellant, nor should Social Security benefits be used as a substitute. The duty of a parent to support a child is not limited to current earnings but extends to his financial ability to pay from any and all sources that might be available. Ondrusek v. Ondrusek, 561 S.W.2d 236, 238 (Tex.Civ.App.— Tyler 1978, no writ). We sustain this point.

That portion of the judgment granting the divorce and awarding custody of the children is affirmed; the remainder of the judgment is reversed and the cause is remanded.

      . The trial court later found that Appellee had no interest in the Woodville Truck Stop.


author: DOYLE, Justice.

text:
    Travis Gordon WHITE, Appellant, v. Sybil Marie WHITE, Appellee.
    No. 17496.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1979.
    Lykos & Bergner; Wayne H. Paris, Houston, for appellant.
    Thurlow & Hennessy; Thomas N. Thur-low, Houston, for appellee.
   DOYLE, Justice.

Travis Gordon White, appeals from that portion of a divorce judgment which divested him of all title in a certain tract of realty acquired by gift during his marriage to Sybil Marie White. Appellant contends that the deed of gift was made to him and appellee, jointly, thereby vesting in each an undivided one-half interest as their separate property, which as a matter of law could not be awarded to appellee under the court’s discretionary power as set out in Sec. 3.63 of the Texas Family Code.

We reverse and remand in part and affirm in part.

Appellant and appellee were married in 1963 and appellee filed this divorce action in 1977. Three children were born of this marriage.

In 1968, Alice Wilma Hallson, appellee’s aunt, conveyed certain real property described as Lot 20, Block 14, Briarmeadow Section 1, Harris County, Texas (7806 Richmond Avenue) to both parties as grantees.

Appellee testified that her aunt owned this property and house; that she had a very close relationship with her aunt; and that this same aunt had given homes to her mother and an unmarried sister. She further attempted to state that she and her aunt had a conversation prior to the execution of the deed to this property, but the court sustained objections to such conversation as hearsay.

Appellant introduced into evidence, without objection, a copy of the deed to this property reciting:

That ALICE WILMA HALLSON, joined herein pro forma by her husband, D. C. McKenzie Hallson, of the County of Harris, State of Texas, hereinafter called “Grantors” for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) cash and other good and valuable considerations to us in hand paid by SIBYL MARIE QUEEN WHITE and husband, TRAVIS GORDON WHITE, hereinafter called “Grantees”, the receipt and sufficiency of which are here by acknowledged and confessed, and the further consideration of the love and affection that I have for SIBYL MARIE QUEEN WHITE and her husband, TRAVIS GORDON WHITE, have GIVEN, GRANTED, SOLD and CONVEYED and by these presents do GIVE, GRANT, SELL and CONVEY unto the said SIBYL MARIE QUEEN WHITE and husband TRAVIS GORDON WHITE, of Harris County, Texas, .

After the introduction of above deed, the court refused to hear any further testimony from either party stating that there was no objection to its admission and that the deed spoke for itself. The court did allow appel-lee to make a bill of exception on the excluded testimony which formed the basis of appellee’s crosspoint of error which we will address later. In its final divorce decree the court awarded the subject property to appellee. Appellant filed a Motion for Judgment (Notwithstanding Court’s Ruling) which the court overruled. No findings of fact or conclusions of law were requested or filed.

Appellant’s one point of error alleges that the district court erred as a matter of law and abused its discretion under Section 3.63 of the Family Code by divesting appellant of his undivided one-half interest in his separate real estate located at 7806 Richmond Avenue, Houston, Harris County, Texas, and awarding same to appellee. During the hearing in this cause, both parties stipulated this conveyance was a gift. The deed itself does not recite it was a gift to the community nor is there any testimony to this effect. Pursuant to Tex.Fam. Code Ann. § 5.01 (Vernon 1975), property acquired by a spouse during marriage by gift, devise, or descent is a spouse’s separate property. Where both appellant and appel-lee are named as grantees in the deed, the gift of real property vested in each an undivided one-half interest as his or her separate property. Rogan v. Williams, 63 Tex. 123 (1885); Belkin v. Ray, 142 Tex. 71, 176 S.W.2d 162 (1943); Tittle v. Tittle, 148 Tex. 102, 220 S.W.2d 637 (Tex.1949).

It is well established that divorce courts in this state may exercise wide discretion in making a division of the parties’ property, and such discretion should not be disturbed on appeal unless a clear abuse of discretion is shown. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App. — Houston [1st Dist.] 1974, no writ); Huff v. Huff, 554 S.W.2d 841 (Tex.Civ.App. — Waco 1977, writ dism’d). In the Cooper case, supra, this court stated that when the trial judge has made a finding that the estate of the parties has been divided in a manner that is fair, just and equitable, the fact that he may have concluded that certain property was of a particular character will not result in reversible error. See also Dillingham v. Dillingham, 434 S.W.2d 459 (Tex.Civ.App.— Ft. Worth 1968, writ dism’d). We think these cases correctly state the law with respect to community property. However, the Supreme Court of Texas in 1977 set out the law regarding separate real property. In Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977), the court stated that a trial judge’s discretion does not extend to taking of fee to separate property of one and donating it to the other. The court further held that the “estate of the parties” within the meaning of Sec. 3.63 of the Family Code, means community property and that the statute did not authorize a divesting of the separate real estate of the husband and a transferring of it to the wife by the trial court. We hold the trial court abused its discretion in awarding appellant’s separate real property to the appellee. Appellant’s point of error is sustained.

Appellee urges that when the trial judge has made a finding that the estate of the parties has been divided equitably, he may have concluded that certain property was of a particular character, i. e., either community property of Mrs. White and appellant, or Mrs. White’s separate property. This conclusion would have to be made by the trial court to escape the rule announced in the Eggemeyer case. It is undisputed and stipulated that the deed was a.gift to appellant and appellee. The instrument shows nothing more or less. As such, the land was the separate property of each spouse as a matter of law. Tex.Fam.Code Ann. § 5.01 (Vernon 1975); Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 567-568 (1961). Appel-lee quotes appellant as saying during the trial that “I’ve never contended this was separate property.” A reading of the testimony before and after this quote clearly shows that appellant was testifying about some ranch land in Gonzales County, Texas, and not the subject property at 7806 Richmond Avenue, Houston. The only other testimony from which any inference giving rise to a characterization could have come was from that adduced from appellee on the bill of exception which the court treated as follows:

Mr. Thurlow: Your Honor, we would like to present as a rebuttal witness, Mrs. White.
The Court: In regard to the furniture items?
Mr. Thurlow: That and in regard to the deed, Your Honor.
The Court: I’m not going to listen to any more testimony about this deed, counsel, from anybody.
Mr. Thurlow: May I make a bill on it, Your Honor?
The Court: There was no objection to the admission of it, counsel, and thé deed speaks for itself. I’m not going to allow either party to offer any hearsay impeachment on this deed. It’s obvious on its face what it intended.

We find no evidence in the deed nor the misinterpreted statement of the appellant concerning the ranch land that would support a conclusion that the subject property was either appellee's separate property or the community of the parties.

Appellee in a crosspoint of error argues that parol evidence should be admitted even in the absence of allegations of fraud, accident or mistake to show a collateral agreement which is part of the consideration of the written agreement, or operated as an inducement for entering into it, citing Callaway v. Albin, 114 Tex. 5, 261 S.W. 372 (1924); Southwestern Public Service v. Smith, 48 S.W.2d 456 (Tex.Civ.App. —Amarillo 1932, writ dism’d). Appellee relies rather strongly on one other case, Von Hutchins v. Pope, 351 S.W.2d 642 (Tex.Civ.App. — Houston [1st Dist.] 1961, writ ref’d n. r. e.). In reading these cases, every decision to allow or disallow parol evidence was based upon the specific facts of that case, none of which is in point with the case before us. The trial court heard the parol evidence offered in appellee’s bill of exceptions and rejected it as hearsay. Hearsay evidence is wholly incompetent and without probative force, and can never form the basis for establishing a cause of action, finding of fact, or judgment of court, whether objected to or not. Covault v. Texas Instruments, Inc., 531 S.W.2d 441 (Tex.Civ.App. — Tyler 1975, no writ). Appellee’s crosspoint is overruled.

Courts of civil appeals may not render a property division, but must remand the case to the trial court. McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976). Pursuant to Tex.Fam.Code Ann. § 3.63 (Vernon 1975), the trial court may make a just and right division of the parties’ property. In view of the fact that appellee in this case was awarded custody of the couple’s three children, the trial court may reform its decree in accordance with the Eggemeyer decision. Appellant’s interest in the home may be imposed with a trust to enforce his duty to support and maintain his children, but he may not be divested of the fee to his separate property. We hold that by virtue of the deed of gift to the parties, a one-half interest vested in appellant as his separate property.

That part of the judgment dividing the community property is reversed, severed and remanded for further proceedings. We affirm the judgment in all other respects.

COLEMAN, C. J., and WALLACE, J., also sitting.


author: COLEMAN, Chief Justice.

text:
    SUGAR CREEK HOMES ASSOCIATION, Appellant, v. Lavinia B. BERRY, Appellee.
    No. 17443.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1979.

      Scherer, Roberts, Slone, Gresham & Ly-tle, Charles R. Slone, Richmond, for appellant.
    George M. Karam, Fulbright & Jawarski, Robert A. Maclnnes, Bernard L. Hebinck, Houston, for appellee.
    Before COLEMAN, C. J., and WALLACE and DOYLE, JJ.
   COLEMAN, Chief Justice.

This is an appeal from a summary judgment entered in a suit brought for the purpose of enforcing building set-back lines established for a residential subdivision. The appellant, Sugar Creek Homes Association (Sugar Creek), as the representative of the owners of lots in the Sugar Creek subdivision, sought a mandatory injunction to require appellee, Lavinia B. Berry (Berry), to remove the portion of a fence on her lot which the appellant asserts was erected in violation of the subdivision building setback line and restrictions. Berry subsequently filed a counter-claim for damages against Sugar Creek, and cross-claims for damages against Reed Construction Company (“Reed”), the builder of the fence; and against Robert E. Marsh, (“Marsh”), a surveyor. Reed also filed a cross-claim against Marsh.

The trial court ordered a separate trial of the issues between Sugar Creek and Berry, and on February 10, 1977 testimony was heard. At the conclusion of this hearing the judge took the matter under advisement. On October 24, 1978, a motion for summary judgment was filed and, without objection, was called for trial by a judge other than the one before whom the previous trial was held. The summary judgment was granted denying Sugar Creek the relief it sought, and this appeal resulted.

We find that the summary judgment evidence established Berry’s affirmative defenses of waiver and estoppel, and affirm the summary judgment.

Berry is the owner of a lot in Sugar Creek subdivision which is subject to restrictions recorded in the deed records of Port Bend County, Texas. These restrictions provide for a building set-back line, and the summary judgment evidence establishes that Berry has caused to be erected a fence nearer to the front of the lot than is permitted by the restrictions.

The fence involved is constructed of woodwork supported by,large brick pillars. Reed built both the fence and the Berry house. While plans for the house were approved by Sugar Creek, plans for the fence were prepared at a later date and were not submitted for approval prior to the erection of the brick pillars. Marsh established the building set-back line by survey after the brick pillars had been erected. This survey was done at the request of, and furnished to, Stewart Title Company. It established a violation of the building set-back line.

Marsh testified by deposition that Rhon Wallace, an employee of Sugar Creek, at a time subsequent to his survey of the Berry lot, told him that another homeowner was complaining about the fence, and that Sugar Creek would hold Marsh harmless if he would prepare a false survey showing the brick pillars on the Berry lot to be properly located. Marsh agreed, and prepared in his office a false survey showing a “corrected building line” dated April 10, 1975. This survey was submitted by Marshall Echols, the designer of the fence, to Sugar Creek in order to gain approval for construction of the woodwork between the brick pillars. There is no evidence that Echols knew that the survey was false. Rhon Wallace, on behalf of Sugar Creek, then approved the proposed construction in writing.

Berry testified that she had no knowledge that the location of the brick pillars violated the building restrictions. She further testified that she relied on the written approval and proceeded to erect the wood sections of the fence. The cost of this part of the fence was $2,352.00.

On June 18,1975, by letter signed by Miss Virginia R. Moon, Sugar Creek disapproved of the placement of the brick pillars. Berry testified that this was the first she had heard of a possible setback violation. The fence was complete at-this time.

In her motion for summary judgment, Berry asserted that her affirmative defenses of estoppel and waiver are established by the summary judgment evidence. Sugar Creek filed no answer to the motion for summary judgment, and no affidavits in opposition thereto. No affidavits were filed by Mrs. Berry, but her deposition has been forwarded to this court along with the depositions of other witnesses. In addition, testimony taken at the trial on the merits of this action has been transcribed and filed in this court. This testimony was heard by Judge G. P. Hardy, Jr., and the summary judgment was later granted by Judge Charles Dickerson. The summary judgment was signed and entered on January 22,1979. The statement of facts was certified by the court reporter on the 30th day of April, 1979, and was approved by the attorneys on the 18th day of May, 1979. The statement of facts obviously was not on file in the district court at the time the summary judgment was rendered.

Where an instrument designated a statement of facts and consisting of transcribed testimony of witnesses in an abortive trial bore no file mark of the trial court, and there was no showing that the trial court considered the instrument at the time the motion for a summary judgment was sustained, such instrument would not be considered by the reviewing court on appeal. Richman Trusts v. Kutner, 504 S.W.2d 539 (Tex.Civ.App. — Dallas 1973, writ ref. n. r. e.).

It appears the Sugar Creek concealed from Mrs. Berry its knowledge that the placement of the brick pillar violated the building restrictions, and falsely represented to her that the placement of her proposed fence was within the building setback line. At the time the representation was made Sugar Creek knew it to be false, but Berry had no knowledge of its falsity. There is evidence that the representation was made with the intention that Berry act upon it, and that she was induced by the false representation to complete her fence. There is evidence to support these essential elements of an estoppel, and no evidence raising a fact issue as to any one of them. The affirmative defense of estoppel is established. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972).

The testimony of Marsh establishes that Rhon Wallace, an agent of Sugar Creek, knew of the improper placement of the pillar and of Sugar Creek’s right to demand its relocation prior to the date on which Wallace went a letter approving the plans for the fence. The sending of this letter was an act inconsistent with the right of Sugar Creek to demand relocation of the fence, and with Sugar Creek’s intention to rely upon this right. Since there was no evidence to the contrary, Berry has established her affirmative defense of waiver. Hale v. Realty Acceptance Corporation, 122 S.W.2d 334 (Tex.Civ.App. — Amarillo 1938, no writ); 2 McDonald, Tex.Civ.Prac. § 7.38, p. 262.

The Supreme Court of Texas has recently rendered an opinion clarifying the summary judgment practice under Rule 166-A, T.R.C.P., as amended in 1978, styled City of Houston vs. Clear Creek Basin Authority, 589 S.W.2d 671 (1979). In discussing Rule 166-A, the Supreme Court said that the trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant’s summary judgment proof is legally insufficient. The movant must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law.

Where the non-movant fails to file an answer or response, he can contend on appeal only that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment. The non-movant must expressly present to the trial court any reason seeking to avoid movant’s entitlement, and he must present summary judgment proof when necessary to establish a fact issue.

The testimony relied upon to establish some of the necessary elements of the special defenses is found in depositions of interested witnesses. Section (c), Rule 166-A, now provides that a summary judgment may be based on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. The testimony meets these standards.

The summary judgment is affirmed.


text:
    John W. CHANDLER, Appellant, v. Velda K. Chandler MIERENDORF, Appellee.
    No. 17491.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1979.

      James M. Murphy, Dallas, for appellant.
    Bresenhan, Martin &• Wingate, Maurice Bresenham, Jr., Houston, for appellee.
    Before COLEMAN, C. J., and WALLACE and DOYLE, JJ.
   COLEMAN, Chief Justice.

This is an appeal from a judgment for unpaid child support. John W. Chandler (appellant) and Velda K. Chandler Mieren-dorf (appellee) were divorced in March, 1975, by decree of the Domestic Relations Court (now the 301st Judicial District Court) of Dallas County, Texas. In 1977 appellant filed a motion to modify the decree in the Dallas court. In response to a motion to transfer the suit to Harris County, the 301st Judicial Court-, acting on authority of Texas Family Code, Title 2, § 11.06, transferred the suit to the 247th Judicial District Court of Harris County.

A motion for contempt and to reduce unpaid support to judgment was then filed by appellee in the 247th District Court. Appellant filed a plea to the jurisdiction and a plea in bar, in which he asserted that the 301st Judicial District Court maintains exclusive, continuing jurisdiction with respect to enforcement of its orders providing for child support. This motion was overruled, and appellant was held in contempt for failure to pay child support. The contempt order was attacked by writ of habeas corpus in this court, and appellant was ordered discharged. Ex parte Chandler, 580 S.W.2d 12 (Tex.Civ.App. — Houston [1st Dist.] 1979). Subsequently the 247th Judicial District Court entered the judgment from which this appeal was taken.

Appellant asserts that the judgment for unpaid child support is void because the 247th District Court is without jurisdiction to enforce an order for child support issued by the 301st District Court which reduces the unpaid amounts of child support to judgment under the authority of Texas Family Code, § 14.09(c). That section provides:

“On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment . after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts.”

Section 11.06(b) of the Family Code provides that if a petition or a motion to modify a decree is filed in a court having continuing jurisdiction of the suit, the court on motion, and on a showing that venue is proper in another county, shall transfer the proceeding to the county where venue is proper. Paragraph (c) also provides that for the convenience of the parties and witnesses and in the interest of justice, the court may transfer the proceeding or motion to a proper court in any other county in the state.

Paragraph (g) provides that the court transferring a proceeding shall send to the proper court in the county to which transfer is made the complete file in the suit affecting the child, certified copies of all entries in the minutes, and a certified copy of any decree of dissolution of marriage issued in a suit joined with the suit affecting the parent-child relationship.

Paragraph (h) provides that a court to which a transfer is made becomes the court of continuing jurisdiction, and all proceedings in the suit are continued as if it were brought there originally.

Appellant asserts that § 11.06(h) is inapplicable to the enforcement provisions of § 14.09(c), drawing an analogy to a line of Texas cases holding that contempt may be used as a means to enforce a child support order only by the court originally entering that order.

This rule of law was laid down by the Supreme Court of Texas in Ex parte Gonzalez, 111 Tex. 399, 238 S.W. 635 (1922). The Supreme Court considered a contempt decree issued by the 41st District Court of El Paso County for a pre-transfer violation of the terms of a prior decree issued by the 65th District Court of that same county. In Gonzalez, as in this case, the proceedings were transferred pursuant to a statutory provision that the court to which the transfer was made “had jurisdiction of the case as though the suit had been originally brought in that court.” In Gonzalez the Supreme Court held that only the court in which the proceedings were pending at the time of the occurrence of the alleged violations had authority to punish for contempt. This holding has been followed in a number of cases. See Ex parte Alvarado, 543 S.W.2d 144 (Tex.Civ.App. — El Paso 1976, no writ); Carlson v. Johnson, 327 S.W.2d 704 (Tex.Civ.App. — Houston [1st Dist.] 1959, no writ).

The judgment of the-247th District Court was entered for the purpose of assisting appellee to collect child support awarded by the 301st Judicial District Court. We conclude that this action is expressly authorized by the Family Code, and that the order reducing the unpaid child support to judgment is valid. Section 11.01(5) “ ‘(s)uit affecting the parent-child relationship’ means a suit brought under this subtitle in which the appointment of a managing conservator or a possessory conservator, access to or support of a child ... is sought.” We consider a suit brought for the purpose of enforcing a support order to be a suit affecting the parent-child relationship.

Section 11.05(a) states:

“(W)hen a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and ho other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfers as provided in § 11.06 of this code.”

The Supreme Court, in Trader v. Dear, 565 S.W.2d 233 (Tex.1978), emphasized that the provisions of Section 11.05(a) provided that the court in which a suit affecting the parent-child relationship was first filed or one to which the suit had been transferred as provided in the Code had continuing jurisdiction of all matters provided for under the Code in connection with the child, and that all other courts of Texas were required to respect its jurisdiction. The court specifically pointed out, however, that habeas corpus proceedings under the Family Code may be filed in the courts of any county in which the child is found, as well as the court of continuing jurisdiction, to enforce an outstanding custody order.

The courts of this state have long been open to actions instituted for the purpose of enforcing judgments of other states, and are required to lend their assistance in enforcing judgments of other states for child support by the Uniform Reciprocal Enforcement Of Support Act, Texas Family Code, § 21.01 et seq. See, Westphal v. Palmer, 480 S.W.2d 277 (Tex.Civ.App. — Houston [14th Dist.] 1972, no writ).

Section 11.06(h) expresses clearly the legislative intent that the transferee court takes continuing, exclusive jurisdiction over all proceedings in the suit. We find no reason to limit the jurisdiction of a transferee court to reduce to judgment only those child support payments that became due and payable after the transfer. In Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex. 1974), the Supreme Court stated:

“Recognizing the need to commit the decisions of all controversies that directly affect the welfare of particular children to a single court, the Legislature recently enacted Chapter 11 of the Texas Family Code, which provides that once a court acquires jurisdiction of ‘the parent-child relationship’ with respect to a particular child, it has exclusive ‘continuing jurisdiction’ of all suits affecting that relationship. . . . [w]e assume the legislature intended to use the phrase ‘continuing jurisdiction’ in the same sense in which this court has heretofore used it in connection with child support orders, to mean that jurisdiction which continues after final judgment . . . ”

The jurisdiction to reduce unpaid payments under a support order to judgment on motion is jurisdiction which continues after final judgment. This case was properly transferred from the 301st Judicial District Court of Dallas County to the 247th Judicial District Court of Harris County. The 247th District Court was the only court having jurisdiction to reduce unpaid child support to judgment.

Affirmed.


text:
    HARRIS COUNTY CHILD WELFARE UNIT et al., Appellants, v. George CALOUDAS et ux., Appellees.
    No. 17414.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1979.

      George D. Ford, Jr. of the Harris County Child Welfare Unit, Gerald Scheve, Patricia Lykos, Mary Bacon, Houston, for appellants. ’
    Fouts, Moore, Coleman & Royall, Donald R. Royall, Houston, for appellees.
    Before COLEMAN, C. J., and DOYLE and WALLACE, JJ.
   DOYLE, Justice.

Harris County Child Welfare Unit (HCCWU) and Mildred Rebstock (Appellants) bring this appeal from a judgment terminating the parent-child relationship between Mildred Rebstock and her minor daughter, Cindy Rebstock, (Cindy) and further allowing George and Beverly Caloudas (Appellees) to adopt the minor child. The questions before this court are whether the appellees, as foster parents, have standing to petition for termination of parental rights and adoption and whether the district court has jurisdiction to decide such a suit. We hold that the appellees have the standing to bring their petition and that the district court in which it was filed has exclusive jurisdiction to determine the issues raised.

We affirm.

Cindy was born to Mildred Rebstock in Harris County, Texas, on October 21, 1975. It is undisputed that at the time of her birth appellant had been using drugs and the child suffered some withdrawal symptoms. Approximately four months later, February 1976, Cindy was taken into custody by HCCWU pursuant to the emergency provisions of the Texas Family Code § 17.-01. Thereafter, HCCWU was appointed temporary managing conservator of the child and by agreement with Christian Child Help Foundation, (CCHF) Cindy was placed in the foster home of George and Beverly Caloudas. In March 1976, HCCWU filed a petition to terminate appellant Mildred Rebstock’s parental rights alleging she had allowed the child to remain in dangerous surroundings; she had engaged in conduct endangering the child; and she had failed to support the child. No further action was taken in this cause. In October 1976, appellant was convicted of possession of drugs and was given a ten year probated sentence, conditioned, among other terms, upon her participation in the Alternative Drug Abuse Program. Appellant participated in the program for two years. During the first year, she was not allowed to visit her child, but in the second year, HCCWU initiated visitation between appellant and Cindy as a preliminary step in a program to eventually reunite Cindy and her mother. While appellant continued her rehabilitation, Cindy remained in the appel-lees’ home. In March 1978, appellees instituted a suit to terminate the parent-child relationship between appellant and Cindy, and two men, each of whom' was alleged to be Cindy’s father. Both men filed waivers disclaiming any interest in the proceedings and the matter went to trial without them as parties. Appellees further prayed that they be allowed to adopt Cindy. Appellees’ suit was consolidated with the original suit filed by HCCWU. In May, 1978, HCCWU amended their original petition for termination to a suit seeking managing conserva-torship so that'it could supervise the return of the child to her mother.

Trial was to a jury in October 1978, with the jury answering four special issues. By a preponderance of the evidence, the jury found:

1. Mildred Rebstock knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical and emotional well being of the child.
2. Mildred Rebstock engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical and emotional well being of the child.
3. The termination of the parent-child relationship between Mildred Reb-stock and Cindy would be in the best interest of the child.
4. The best interests of the child would be served by appointing George and Beverly Caloudas as managing conservator.

The court entered judgment on the jury verdict and allowed appellees to adopt the child.

Harris County Child Welfare Unit presents four points of error; appellant Mildred Rebstock presents one.

By their first two points of error, HCCWU complains the trial court erred in denying appellants’ motions to dismiss ap-pellees’ suit on grounds of appellees’ lack of standing, and further that appellees had violated a contract they executed upon being designated a foster home, which expressly forbids the adoption of any child in their care.

In the instant case, the court docket sheet does state “Motions denied (1-2 & 3).” It does not state if these are the same motions, and the record before this court does not show any judicial order regarding these motions, or whether appellant excepted to the judge’s order. The docket sheet cannot stand as an order or substitute for such record. Kollman Stone Industries, Inc. v. Keller, 574 S.W.2d 249 (Tex.Civ.App.-Beaumont 1978, no writ); Hamilton v. Empire Gas and Fuel Co., 134 Tex. 377, 110 S.W.2d 561 (1937, opinion adopted). Consequently appellant waived its special exception, and has not apprised this court of any record showing if, or why, the motions were denied.

On appeal, HCCWU asserts the violation of a contract, specifically forbidding this adoption. At the trial level, however, HCCWU filed no pleadings alleging this theory. An appellant is limited to the theories upon which the case is tried and he may not appeal the case on new or different theories. Brown-McKee, Inc. v. Western Beef, Inc., 538 S.W.2d 840 (Tex.Civ.App.-Amarillo 1976, writ ref’d n. r. e.). The contract was introduced into evidence over appellee’s objection, so the trial of these issues was not by consent. Finally, although the contract was discussed throughout this litigation, appellant failed to request the submission of any issues regarding this theory. Rule 279, T.R.C.P., provides that a party waives an issue upon which he relies by failing to request its submission. Dittberner v. Bell, 558 S.W.2d 527 (Tex.Civ.App.-Amarillo 1977, writ ref’d n. r. e.); Cramer v. White, 546 S.W.2d 918 (Tex.Civ.App.-Fort Worth 1977, writ ref’d n. r. e.); Hopkins v. Standard Fire Insurance Co., 554 S.W.2d 270 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ). Rules governing submission of special issues apply to child custody cases tried before a jury. Fatheree v. Eddleman, 363 S.W.2d 784 (Tex.Civ.App.-Amarillo 1962, no writ). Appellant waived its right to complain on appeal. Accordingly its first two points of error are overruled.

By points of error three and four, HCCWU generally contends that the district court had no authority to terminate the parental rights of appellant Mildred Rebstock without its concurrence, since it was the agency mandated by statute to determine and provide for the best interest of a child such as Cindy. It further argues that the right of natural parents to their children is paramount and that once it had begun a program to reunite child and mother, public policy demanded that it be allowed discretion to pursue its objective and that the trial court erred in terminating the parental rights of Mildred Rebstock and appointing appellees managing conservator, since they were foster parents and lacked standing to bring their suit.

HCCWU cites many cases from foreign jurisdictions involving foster care contracts with state agencies and individuals. No guidance can be gathered from such references as each state follows its own statutory authority in these matters. Texas is no exception and pursuant to the constitutional mandate set forth in Art. V, § 8, the district courts have always exercised original jurisdiction and general control over minor children “under such regulations as may be prescribed by law.” Consequently, with the enactment of the Texas Family Code, the rights, privileges, duties and responsibilities of agencies and persons dealing with minor children have been set out and defined in minute detail. No distinction is made between an authorized agency and a person. Tex.Fam.Code Ann. § 14.-02(b), 14.02(c) (Yernon 1975). Section 11.03 (1974) of the Code provides that any interested person may bring a suit affecting the parent-child relationship as such suit has been defined in Sec. 11.01(5) (1975) of the Code. It must be conceded that for the purposes of petitioning for managing conservator or adoption, there are no such entities as “legal strangers.” Section 16.02 (1975) of the Code provides that any adult is eligible to adopt a child who is eligible to be adopted. Indeed, it has been recently held, as pointed out in appellees’ excellent brief, that:

“The express purpose of the statutory scheme of adoption is to create a parental relationship with the rights, powers, and responsibilities pertaining thereto between persons who prior to the adoption were generally legal strangers.”

The foregoing excerpt is from the majority opinion in the case of In the Interest of an Unnamed Child, 584 S.W.2d 476 (Tex.Civ.App.-Fort Worth 1979, writ filed), which has not yet been reported. The court further held that although the Edna Gladney Home had been appointed managing conservator, the paternal grand parents had standing to file their petition for adoption of their deceased son’s child. The petition alleged that the Home had withheld consent without good cause pursuant to Sec. 16.-05(d) of the Texas Family Code (1974). The appellate court reversed the trial court’s judgment denying the adoption and remanded the cause for further proceedings. The dissent relied on Lutheran Social Service, Inc. v. Farris, 483 S.W.2d 693 (Tex.Civ.App.-Austin 1972, writ ref’d n. r. e.) which held that where the petition failed to allege that consent of the agency had been obtained, the exception urged in the trial court should have been sustained. This case was tried before the effective date of the Texas Family Code.

We have examined all authorities submitted by the parties and conclude that the trial court had the jurisdiction and duty to carry out its responsibility to enter judgment based upon the best interest of the child. The appellees had standing to bring their petition. Points of error three and four are overruled.

By her one point of error, appellant Mildred Rebstock objects to jury finding number 3, contending that evidence of the best interest of the child was legally insufficient to terminate her parental rights. • Where appellant directs her point to the legal sufficiency of the evidence, this is considered a no evidence point and as such the court must look to see if there is evidence to support the finding and disregard all inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); In Interest Of E.S.M., 550 S.W.2d 749 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref’d n. r. e.).

While there is no statutory definition of “best interest of the child,” Tex.Fam.Code Ann. § 14.07(a) (Vernon 1975), appellant cites the case of Holley v. Adams, 544 S.W.2d 367 (Tex.1976) for some criteria in defining the best interest of the child. These factors include: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or the proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. In its charge to the jury, the court set forth these same factors in its definition of best interest so we must assume that the jury considered each of them during its deliberations. As shown in the more than 1400 pages of testimony in this cause, there is evidence that the best interest of the child would be served by staying in the foster home of the appellees. Testimony by neighbors, a Family Court Services investigator and two psychologists lauded the parental abilities of appellees and further testified the child should stay with them. There is ample evidence that termination of the parental rights of appellant Mildred Rebstock was in the best interest of the child, Cindy. We overrule her lone point of error.


author: BISSETT, Justice.

text:
    The UNITED FARM WORKERS, AFL-CIO and Rebecca Flores Harrington, Appellants, v. H. E. BUTT GROCERY COMPANY, Appellee.
    No. 1571.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 22, 1979.
    Rehearing Denied Nov. 29, 1979.

      James C. Harrington, Oficina Legal Del Pueblo Unido, San Juan, for appellants.
    Phillip J. Pfeiffer, Fulbright & Jaworski, Houston, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal by defendant United Farm Workers Union, its officers and Rebecca Harrington [UFW] from a temporary injunction granted in favor of plaintiff H. E. Butt Grocery Company [HEB]. HEB alleged generally that the UFW was conspiring to commit unlawful acts against it. Specifically, HEB accused the UFW of engaging in secondary boycott activity, unlawful restraint of trade, interference with the public’s right of ingress and egress, interference with employees’ right of ingress and egress, and the use of insulting, threatening and obscene language, oral misrepresentations and slanderous statements. A temporary injunction was requested pending a trial on the merits.

The 197th District Court of Cameron County temporarily enjoined the UFW from:

“1. Picketing or engaging in any picketing activities, including the stationing or posting of one’s person or of others for and/or in behalf of any of the Defendants, at any of Plaintiff’s premises or facilities, including adjacent parking lots, parking lot exists and entrances, and adjacent sidewalks;
2. Any demonstrations, whether oral, written or visual, at any of Plaintiff’s premises or facilities, including adjacent parking lots, parking lot exits and entrances, and adjacent sidewalks and streets;
3. From carrying or displaying signs, posters, flags or banners at any of Plaintiff’s premises or facilities, including adjacent parking lots, parking lot exists and entrances, and adjacent sidewalks and streets;
4. Inducing, or attempting to induce, any customer or potential customer of Plaintiff to refrain from shopping at or doing business with Plaintiff where such occurs at any of Plaintiff’s premises or facilities, including adjacent parking lots, parking lot exits and entrances, and adjacent sidewalks and streets;
5.Indicating or suggesting the existence of a strike by Defendants against Plaintiff or of the existence of a labor dispute between Defendants and Plaintiff; . . . ”

As a “limited exception” to the injunction, the UFW was expressly permitted by the court to pass out leaflets at HEB premises or facilities provided the following conditions were at all times satisfied:

“(a) Such leafleting is at all times peaceful and does not involve blocking or restricting ingress and egress;
(b) the leaflets only ask that customers refrain from purchasing California-Iceberg lettuce or Chiquita bananas, if such products are being handled by Plaintiff at the premises or facility being leafleted, and the leaflets clearly state that Defendants have no labor dispute with Plaintiff and there is no strike by Defendants against Plaintiff and that Defendants are not urging customers to boycott Plaintiff or to refrain from shopping at Plaintiff’s premise or facility;
(c) Such leafleting is not accompanied by any oral communication;
(d) The leafleting is performed by no more than two persons per public entrance to the premise or facility of Plaintiff which is the subject of the leafleting; and
(e) No vehicular traffic is stopped or interfered with and no effort is made to distribute leaflets to the occupants of automobiles coming onto Plaintiff’s premises or facilities until after said automobiles have been parked.”

A statement of facts was not filed in this case. The record upon which we dispose of this appeal consists of a transcript only.

At a hearing upon the request for a temporary injunction the only question before the trial court is whether the applicant is entitled to preservation of the status quo of the subject matter of the suit pending trial on the merits. On appeal from an order granting a temporary injunction, the reviewing court is limited to a consideration of whether the trial court abused its discretion in making the foregoing determination.

In the instant case, judgment of the trial court was signed on July 20, 1979. UFW, in its “designation for Transcript,” made on July 23,1979, requested the district clerk of Cameron County, Texas, to prepare a transcript which, “in addition to any other matters required by law or the Texas Rules of Civil Procedure,” would contain:

“(1) Plaintiff’s Original Petition;
(2) temporary restraining order;
(3) temporary injunction.”

Nothing further was requested by UFW. The transcript was timely filed in this Court on August 6, 1979. At that time, request for findings of fact and conclusions of law had neither been requested nor filed. No motion for an extension of time within which to file the original transcript was made.

Contemporaneously with the filing of the transcript, UFW presented to the Clerk of this Court, for filing, several pages of dialogue between the trial judge and counsel for UFW, which took place during a hearing held on July 12,1979. These pages, entitled “PRELIMINARY FINDINGS OF FACT,” were signed by the court reporter and by no one else. The clerk of this Court marked the document “Received,” and, pursuant to our instructions, did not file the same as part of the record. On August 9, 1979, UFW filed in this Court a motion “for an extension of time within which to file the Preliminary Findings of Fact.” The motion was carried with the case.

The case was set for submission and oral argument on September 17, 1979. On that day, UFW filed a motion in this Court for leave, to file a supplemental transcript which would include “the Findings of Fact and Conclusions of Law to be made by the District Judge below.” This motion was also carried with the case. The trial judge, by letter dated October 2, 1979, advised all parties and the clerk of this Court that he will make findings of fact and conclusions of law.

The making and filing of findings of fact and conclusions of law are controlled by Rule 296-299, T.R.C.P. Under Rule 296, the party who desires that findings and conclusions be made shall request the same of the trial judge, “which request shall be filed within ten days from rendition of final judgment or order overruling motion for new trial.” Rule 297, in part, provides that when such a request is made, the trial judge “thirty days before the time for filing transcript in the cause shall prepare his findings of fact and conclusions of law.” With respect to an appeal from an order granting a temporary injunction, the time for the filing of findings of fact and conclusions of law, if the trial judge in his discretion sees fit to make them, is necessarily limited to twenty days from the date that the order granting a temporary injunction was signed. Rule 385(e), T.R.C.P.

Even in appeals from final judgments, which are not subject to the more strenuous rules imposed on expedited interlocutory appeals, Texas courts have not allowed findings and conclusions to be considered when received after the latest time established by the Rules for filing the transcript and statement of facts. For example, in Bell v. Stephenson, 187 S.W.2d 153 (Tex.Civ.App. — San Antonio 1945, no writ), appellant moved to delay the submission of the cause for 30 days since findings and conclusions had not been prepared in time for inclusion in the transcript filed 60 days after judgment as required by the Rules. In overruling the motion the court stated, “[W]e are of the opinion that we could not consider findings and conclusions which were prepared and filed after the time prescribed by the rules . . . ” Id. at 153.

In Morrow v. Morrow, 387 S.W.2d 480 (Tex.Civ.App. — Houston 1965, no writ), the appellate court refused to consider findings and conclusions which were signed and filed after the latest time for filing the record in accordance with the Rules (60 days for appeals from final judgments). The court concluded: “Our jurisdiction had vested and the time for filing findings of fact had long expired before they were approved by the judge.” Id. at 481. In the instant case, the time for filing had long expired before UFW even requested formal findings; and, further, such findings were still not in existence at the time its motion for extension of time was filed. It has been held that supplemental findings filed in the trial court after expiration of the period for filing the transcript will be disregarded in determining an appeal. See Ott v. Ott, 245 S.W.2d 982 (Tex.Civ.App. — Beaumont 1952, no writ).

The findings and conclusions which the trial judge may make and which UFW intends to file in this Court cannot properly become part of the record in this appeal under Rule 385(b), (e), T.R.C.P. While UFW’s motion states that it has moved the trial court “to make and to file Findings of Fact,” such motion was made on September 8, 1979, some 50 days after the order granting the temporary injunction was signed and some 30 days after the latest date for filing of the record in this appeal. Rule 385(e) states:

“In all appeals from interlocutory orders there shall be no motions for new trial, and the trial judge need not file findings of fact or conclusions of law, provided however, it shall be permissible for the trial judge to file findings of fact and conclusions of law, if they are filed so as not to delay the filing of the record in the appellate court.” (emphasis supplied)

Thus, findings and conclusions are not required in conjunction with appealable interlocutory orders; they are permissible only “if they are filed so as not to delay the filing of the record in the appellate court.” If they were allowed to become part of the record in this appeal, the completed record would have been delayed at least 7 weeks. Allowing such substantial delay of the filing of the record in this interlocutory appeal would be in complete disregard of the letter, intent, and purpose of Rule 385(e).

In Taylor v. American Emery Wheel Works, 480 S.W.2d 26 (Tex.Civ.App. — Corpus Christi 1972, no writ), the appellant, after the expiration of the time for the filing of a statement of facts, filed a motion in this Court for leave to file a supplemental transcription of what occurred at a special subsequent hearing before the trial judge. We denied the motion, and said: “To grant appellant’s motion would in effect, extend the time for filing of a statement of facts beyond the limits imposed by Rule 386, T.R.C.P. This, we cannot do.” The same rule, logic and reasoning applies to the filing of findings and conclusions in the case at bar. To allow UFW to file findings and conclusions at this time would, in effect, extend the time for filing the complete record in the appellate court well beyond the 20-day limit imposed by Rule 385(b), T.R.C.P.

UFW has not shown good cause as to why its request to the trial judge to make findings and conclusions was not timely made. “If the party enjoined wishes detailed findings of fact and conclusions of law he may seek them under the provisions of Rules 296 and 385(e).” Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 553 (1953). UFW’s failure to comply with either Rule 296 (no request within 10 days after rendition of judgment or order overruling motion for new trial), Rule 385(b) (no request within 5 days after the termination of the 20-day period), or Rule 385(e) (no request which would not delay the filing of the record), supplies additional impetus for not allowing UFW now to seek refuge in the arms of Rules 428 and 429, T.R.C.P., which provide for amendments to the record in case of material omissions or where defects appear in the record after submission of the case.

Rules 428 and 429 are inapplicable to this case. The transcript filed herein, which was prepared in exact accordance with UFW’s instructions, did not “omit” findings and conclusions for the simple reason that none had been made at the time the transcript was filed. It is not shown that a defect appears in the record after submission. Rules 428 and 429 regarding amendments must be read in conjunction with other Rules and the overall purpose of the Rules. Rule 1, T.R.C.P. UFW became dissatisfied with the state of the record which they designated and filed. HEB did not in any way interfere with UFW’s ability to timely obtain findings of fact. Now, for the first time, UFW wishes a new record to be created and considered by obtaining findings and conclusions after the time for filing the record has expired and after the case has been submitted. In essence, UFW asks that it be permitted to “start over” with this appeal. We do not agree. See King v. Cron, 285 S.W.2d 833 (Tex.Civ.App. —San Antonio 1956, writ ref’d n. r. e.), cert. denied, 352 U.S. 843, 77 S.Ct. 67, 1 L.Ed.2d 59 (1956).

The pages denominated “Preliminary Findings.of Fact” are, as has been said, a transcription of dialogue between the trial judge and counsel for UFW which occurred at the hearing on the application by HEB for the issuance of a temporary injunction. It purports to be a partial statement of facts. But, it cannot be filed in this Court as a partial statement of facts since the transcription was neither signed by the parties nor approved by the trial court, as required by Rule 377, T.R.C.P. UFW’s motion for an extension of time to file preliminary findings of fact, filed in this Court on August 9,1979, is denied. UFW will not be permitted to file a supplemental transcript which will contain yet-to-be-prepared findings and conclusions as requested by UFW in its motion which was filed in this Court on September 17,1979, the day the case was submitted and oral arguments were heard. All litigants are entitled to a prompt and expeditious determination of appeals, and to grant UFW’s motions would, in effect, not only allow it to start over in its appeal, but would require an unwarranted delay in the disposition of this appeal. No extraordinary circumstances have been shown to justify such action. UFW’s motion to file a supplemental transcript is also denied.

What we have said in no way relates to the right of either party to amend the record in the manner prescribed by Rules 428 and 429, T.R.C.P. As already noted, UFW’s motions do not constitute an attempt to amend the record.

Where findings of fact or conclusions of law are not filed the trial court’s judgment must be upheld on any legal theory supported by the record. Davis v. Huey, 571 S.W.2d 859 (Tex.Sup.1978); Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968). Therefore, we must presume that the trial court’s action in granting the temporary injunction was not an abuse of discretion, State v. Friedmann, 572 S.W.2d 373 (Tex.Civ.App. — Corpus Christi 1978, writ ref’d n. r. e), unless the court’s order reveals fundamental error. Morin v. Morin, 561 S.W.2d 263 (Tex.Civ.App. — Corpus Christi 1978, no writ).

Fundamental errors are those which directly and adversely affect the public interest as that interest is declared in the statutes or constitutions of the state or of the United States. Douthit v. McLeroy, 539 S.W.2d 351 (Tex.Sup.1976); Newman v. King, 433 S.W.2d 420 (Tex.Sup.1968); Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947).

Raising the issue of facial unconstitutionality, the UFW presents three points of error as a basis for our review of the temporary injunction. The first and third points essentially contend that the injunction is unconstitutionally broad. The second point contends that the injunction constitutes an unconstitutional prior restraint of oral communication.

In 1940, the United States Supreme Court declared in Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) that peaceful picketing is a constitutionally protected medium of free speech, which, under the First and Fourteenth Amendments, is immune from hostile state action. See also Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104 (1940). This rule, however, has been qualified on many occasions. The United States Supreme Court has established a broad field in which a state, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, can constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy. See American Radio Association, AFL-CIO v. The Mobil Steamship Association, Inc., 419 U.S. 215, 95 S.Ct. 409, 42 L.Ed.2d 399 (1974).

It is well settled in Texas that peaceful picketing loses its protection under the First Amendment if one of its purposes is contrary to public policy. In Texas, a. secondary boycott is against public policy. It is also against public policy to allow trusts and conspiracies in restraint of trade. Cain, Brogden and Cain, Inc. v. Local Union No. 47, Etc., 155 Tex. 304, 285 S.W.2d 942 (1956).

It is also well settled, however, that a Texas court has no power to supervise one person’s opinion of another or to dictate what one person may say of another. Ex parte Tucker, 110 Tex. 335, 220 S.W. 75 (1920). Equity, however, can and will protect the exercise of contractual rights from interference by attempts at intimidation or coercion, in the guise of verbal or written threats. Ex parte Tucker, supra. No injunction which prohibits lawful picketing may stand; only unlawful picketing may be enjoined. Cain, Brogden and Cain, Inc. v. Local Union No. 47, supra; Construction and General Labor Union v. Stephenson, 148 Tex. 434, 225 S.W.2d 958 (1950).

Texas courts have modified broad injunctions against picketing in some cases. In other cases, courts have reached the same result by defining in the opinion the conduct regarded as being prohibited by the injunction. Cain, Brogden and Cain, Inc. v. Local Union No. 47, supra. Reading the trial court’s order as a whole, we construe paragraph numbers 1, 2 and 3 of the court’s injunction to encompass only the named activities insofar as they constitute unlawful conduct. Such conduct- includes any form of violence, secondary boycott activity, restraint of trade as defined and prohibited in Tex.Bus. & Comm.Code Ann. §§ 15.02-15.04, 15,33 (1968), obstruction of ingress and egress from and to HEB stores, and the use of insulting, threatening or obscene language and oral misrepresentations. Furthermore, the entire injunction extends only to HEB stores in the Rio Grande Valley and Corpus Christi areas. Moreover, we are of the opinion that paragraphs (b) and (c) of the “limited exception” to the temporary injunction are improper. It is not the role of a court of equity to tell pickets what words they must use to preface and express their ideas or to whom they may talk. Such restrictions and prior restraints upon speech in this case are inconsistent with the First Amendment when less drastic means are available to protect the legitimate interest of HEB in freedom from deceptive picketing. See Johnson Brothers Wholesale Liquor Company v. United Farm Workers National Union, AFL-CIO, 308 Minn. 87, 241 N.W.2d 292 (1976).

The error by the trial court in granting a temporary injunction that is overly broad does not, in this case, constitute fundamental error in the judgment as a whole. We modify the judgment and render the judgment that the trial court should have rendered. Rule 434, T.R.C.P. The judgment of the trial court as construed by this Court and with the deletion of paragraphs (b) and (c) of the “limited exception” is affirmed. Rule 434, T.R.C.P.; McDaniel v, Castro County, 514 S.W.2d 488 (Tex.Civ.App.— Amarillo 1974, writ ref’d n. r. e.); Craft v. Hahn, 246 S.W.2d 897 (Tex.Civ.App. — Eastland 1952, writ ref’d n. r. e.).

MODIFIED, and as MODIFIED, AFFIRMED.

YOUNG, J., not participating.