author: COLEMAN, Chief Justice.

text:
    Oliver John BUTLER, Jr., Appellant, v. Earle S. LILLY et al., Appellees.
    No. 16617.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 29, 1976.
    Rehearing Denied Feb. 26, 1976.

      Oliver John Butler, Jr., pro se.
    Frank J. Knapp, Stephen W. Hanks, Houston, for appellees; Butler, Binion, Rice, Cook & Knapp, Houston, of counsel.
   COLEMAN, Chief Justice.

This is a suit for damages based on alleged slanderous remarks made by an attorney during an argument to a jury. The plaintiff was a witness in the case during the trial of which the alleged slanderous remarks were made. The trial court sustained an exception to the plaintiff’s petition on the ground that such remarks were absolutely privileged. In view of the scope of the privilege the trial court determined that a cause of action could not be alleged and dismissed the petition. This appeal resulted.

The issue presented on this appeal is whether as a matter of law a petition which alleges the making of slanderous statements by an attorney during the course of a judicial proceeding is subject to dismissal on special exception asserting “judicial privilege” when such petition alleges that the slanderous statements and actions were irrelevant, immaterial and inapplicable to the issue involved in the judicial proceeding and were completely false and without basis or foundation in the record of the trial.

The plaintiff’s petition alleged that certain slanderous statements and actions, the exact wording of the statement being alleged were made by defendant Lilly during his jury argument at the close of a trial of the child custody issues involved in a divorce suit. The plaintiff, an attorney, was a witness in the proceeding but was neither a party nor an attorney for a party.

The defendant specially excepted to the petition on the ground that the defamatory statements and actions which formed the basis of this suit were made in open court during the course of a judicial proceeding and were privileged as a matter of law.

It is well settled that in determining the sufficiency of a special exception to a petition the court must assume the truth of the allegations of fact contained in such petition. City of San Antonio v. Earnest, 144 Tex. 83, 188 S.W.2d 775 (1945). Thus we are faced with the question of whether a false statement of fact reflecting adversely on the professional character and reputation of a lawyer made by another lawyer in the course of an argument to a jury, and not based on facts developed during the course of the trial, is privileged and under the circumstances cannot form the basis of a cause of action for damages for slander.

Section 586, American Law Institute, Restatement of Torts, reads:

“An attorney at law is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding in which he participates as counsel, if it has some relation thereto.”

In Comment a. under this section it is stated that the privilege is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients. The privilege is absolute, protecting the attorney from liability in an action for defamation irrespective of his purpose in publishing the defamatory matter, his belief in its truth or even his knowledge of its falsity. The comment states that these matters are of importance only in determining the amenability of the attorney to the disciplinary power of the court of which he is an officer. It further states that the conduct of the litigation includes the examination and cross-examination of witnesses, comments upon the evidence and arguments both oral and written upon the evidence, whether made to court or a jury. In Comment c. it is stated that the privilege is confined to statements made by an attorney while performing his function as such.

“Therefore it is available only when the defamatory matter has some reference to the subject matter of the pending litigation, although it need not be strictly pertinent or relevant to any issue involved therein . . ..On the other hand, the privilege does not cover the attorney’s publication of defamatory matter which has no connection whatever with the litigation.”

In Wall v. Blalock, 245 N.C. 232, 95 S.E.2d 450, 61 A.L.R.2d 1297 (1956), a civil action for slander was brought against counsel for the accused in a prosecution for larceny by one who had been a witness for the state. The court sustained a demurrer to the complaint, which action was affirmed by the Supreme Court of North Carolina. The court stated that two views are generally held as to whether words spoken by an attorney in the course of a trial render him liable in an action for slander. “One is, the occasion gives the attorney a privilege absolute and unqualified. The other is, the privilege is absolute, provided the statements are material and pertinent. The former is the English rule. The latter is the rule supported by the weight of authority in the United States . . ” After stating that that court recognizes the materiality and pertinency rule, it held that the materiality and pertinency of the argument in the case before it appears from the allegations of the complaint, and affirmed the action of the trial court in dismissing the case on demurrer.

An annotation follows this case in 61 A.L.R.2d at page 1300. A number of cases are cited supporting the rule “that counsel addressing the jury in the conduct of a judicial proceeding, as regards statements otherwise actionable under the law of libel and slander, is privileged if what he says is, in any view of the case, material and pertinent, . . . ”

In 50 Am.Jur.2d, Libel and Slander, Section 246, this statement is made:

“. . . In the United States the rule supported by the weight of authority is that attorneys conducting judicial proceedings are privileged from liability for libel or slander in respect of defamatory words or writings, used in the course of such proceedings reflecting injuriously on others, that are material and pertinent to the question involved, regardless of how false, malicious, or injurious they may be. A statement is privileged if it has some relation to the proceeding in which it is uttered, and it is not material, if the words are uttered in the course of a trial, whether in form they are addressed to a witness or to the court, or form a part of the argument to the jury, or are stated in the argumentative part of the attorney’s brief . . . ”

Apparently the first Texas case to consider the matter was that of Runge v. Franklin, 72 Tex. 585, 10 S.W. 721 (1889). There the alleged libelous matter was contained in a petition filed in the District Court of Galveston County. A demurrer was sustained to the petition and the appeal resulted. After stating that it did not appear that the allegations declared on as libelous were irrelevant or impertinent or foreign to the end in view, the court stated:

“There are two classes of privileged publications, — absolutely privileged, and conditionally privileged. It is the occasion on which any publication is made that gives it privilege. Proceedings in courts of justice, legislative proceedings, and petitions and memorials to legislatures, are said to be absolutely privileged.”

The court then cited certain cases which required that the defamatory material be pertinent or material to the case and then stated:

“We think the qualification made to the rule in the foregoing case and similar ones unsound. It destroys the distinction. It practically puts proceedings of courts upon the same footing as other conditional privileges . . .We believe it is and ought to be the law that proceedings in civil courts are absolutely privileged

This same privilege was extended to proceedings before the Railroad Commission of Texas in Aransas Harbor Terminal Railway-Company v. Taber, 285 S.W. 841 (Com.App. of Tex., Sec. A, 1921, judgment adopted). There the cause of action was based on an alleged libel contained in a letter written by the defendant to the Railway Commission of Texas in answer to a complaint filed before the Commission. The court stated:

“An absolutely privileged communication is one in respect to which by reason of the occasion on which it is made no remedy can be had in a civil action .
“That communications made in the course of a judicial proceeding are absolutely privileged is no longer a debatable question in this state. Runge v. Franklin, 72 Tex. 585,10 S.W. 721 . . ”

The court then held that the Railroad Commission was a quasi judicial body, exercising judicial powers at the time of the receipt of the communication complained of, and that the communication was absolutely privileged.

This same privilege was extended to communications made to the foreman of a grand jury in the case of Hott v. Yarbrough, 112 Tex. 179, 245 S.W. 676 (Tex.Com.App., opinion adopted, 1922). In this case the court said:

“By an unbroken line of decisions in this state any communication, oral or written, uttered or published in the due course of a judicial proceeding, is absolutely privileged, and cannot constitute the basis of a civil action in damages for slander or libel.”

Following this clear statement of the privilege the court stated that in Runge v. Franklin it was held that defamatory matter in a pleading in a civil suit is absolutely privileged, where relevant to the issues sought to be adjudicated. It quoted from Lindsey v. State, 18 Tex.App. 280, as follows:

“Everything that a judge says on the bench, or a witness in the box, or counsel in arguing, is absolutely privileged, so long as it is in any way connected with the inquiry . . .”

The court then proceeded to hold that the grand jury is an arm of the court and a part of the judicial system for the administration of the criminal law and that it necessarily followed that any communication made to the grand jury in the regular performance of its duties is absolutely privileged, and cannot constitute the basis of a civil suit for damages. The court declared:

“The rule which denies a right of action for defamatory matter uttered or published upon an occasion which the law holds privileged is based upon sound principles of public policy, and not upon the assumption that the law otherwise affords redress or provides punishments which may act as deterrents.”

In Tsesmelis v. Sinton State Bank, 53 S.W.2d 461 (Tex.Com.App., judgment adopted, 1932), the court was concerned with allegedly libelous matter contained in an affidavit for attachment. The trial court sustained exceptions to the petition alleging libel, and on refusal to amend, dismissed the action. In its opinion the Commission of Appeals stated that the averments in the affidavit for attachment were privileged and cannot be made the basis of a suit for libel. However, the opinion further stated:

“Motions and affidavits filed in a civil case before a court having jurisdiction are absolutely privileged, provided the matter contained therein is either relevant or pertinent to the issue.”

The last time that the question of judicial privilege appears to have reached the Supreme Court of Texas was in the case of Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942). This was a suit for libel based upon a libelous statement allegedly circulated by the defendant by filing with the Board of Insurance Commissioners of the State of Texas. The court held that the Board of Insurance Commissioners was a quasi judicial body in certain aspects of their duty and held the communication complained of privileged. In the course of its opinion it stated:

“Before proceeding further we deem it expedient to state certain well-settled rules of law which we think are controlling of this case.
“1. An absolutely privileged communication is one for which, by reason of the occasion upon which it was made, no remedy exists in a civil action for libel or slander. Stated in another way, where there is an absolute privilege, no action in damages for language, oral or written, will lie; and this is true even though the language is false and uttered or published with express malice (citations omitted).
“2. ‘Any communication, oral or written, uttered or published in the due course of a judicial proceeding is absolutely privileged and cannot constitute the basis of a civil action in damages for slander or libel. The falsity of the statement or the malice of the utterer is immaterial, and the rule of nonliability prevails even though the statement was not relevant, pertinent and material to the issues involved in the case.’ 27 Tex.Jur. 645, § 34; (other citations omitted).”

There are a number of opinions by courts of civil appeals in Texas which state the rule that defamatory words uttered in the course of a judicial proceeding to be privileged must be applicable, pertinent or relevant. Koehler v. Dubose, 200 S.W. 238 (Tex.Civ.App.—San Antonio, 1918, writ ref’d); Baten v. Houston Oil Co. of Texas, 217 S.W. 394 (Tex.Civ.App.—Beaumont, 1919, no writ history); Frost v. De Bogory, 291 S.W.2d 414 (Tex.Civ.App.—Dallas, 1956, no writ history).

Other courts of civil appeals have followed the broad statement of the rule found in Reagan v. Guardian Life Ins. Co., supra: Baten v. Houston Oil Co. of Texas, 217 S.W. 394 (Tex.Civ.App.—Beaumont, 1919, no writ); Connellee v. Blanton, 163 S.W. 404 (Tex.Civ.App.—Fort Worth, 1914, writ ref’d); Kruegel v. Cockrell & Gray, 151 S.W. 352 (Tex.Civ.App.—Dallas, 1912, writ ref’d); McAfee v. Feller, 452 S.W.2d 56 (Tex.Civ.App.—Houston [14th], 1970, no writ hist.); Bloom v. A. H. Robbins Co., 479 S.W.2d 780 (Tex.Civ.App.—Waco, 1972, writ dism’d, cert. den., 410 U.S. 983, 93 S.Ct. 1504, 36 L.Ed.2d 179); Duncantell v. Universal Life Ins. Co., 446 S.W.2d 934 (Tex. Civ.App.—Houston [14th], 1969, writ ref’d n. r. e.).

The appellant contends that the cases decided by the Supreme Court of Texas, which enunciate the broad rule of unqualified privilege for statements made in judicial proceedings did not present the issue of pertinency and relevancy and that the language relating to such issue was dicta. Appellant asserts that we should follow the American rule and require that the libelous statements be pertinent and relevant to the issues in the case before the court before holding them privileged. We consider that the statement made by the Supreme Court of Texas of the scope of the judicial privilege in Runge v. Franklin, supra, was made after careful consideration and was the deliberate adoption of a rule of law for the guidance of the trial courts of Texas. The rule of law thus adopted has not been questioned in any opinion since written by the Supreme Court of Texas, and it has been restated in substantially the same verbiage in the opinions of that court. In such instance, if the rule is not absolutely binding on this court, it is at least most persuasive.

The plaintiff’s petition shows on its face that the alleged slanderous words had “some relation” to the proceeding. The facts stated by the attorney in his argument had “some relation” to the credibility of the witness and the weight to be given his testimony, matters with which the jury would be concerned in reaching their verdict. The fact that the statement made by counsel in his closing argument was not true and was not based on evidence in the record, which we must assume to be the case, would not defeat the judicial privilege.

The judgment is affirmed.

      . “The witness himself testifying for Mr. Butler and the witnesses that he brought in, even Mr. Harris, never saw him at Saint Marks Church. You forgot to cover that point, too, Mr. Butler. And his own brother. Now you know what they were doing, people? Let me tell you what Mr. Butler was doing for Mr. Butler. During Oliver John’s divorce; he was lending Ed Butler money so they wouldn’t have it in the community, you see. $7,000 he testified to. After Oliver John got divorced, Mr. Butler paid him back the money and it wasn’t part of the estate. Now, on testimony, Mr. Butler testified that he repaid, out of 47,000 some odd dollars, he repaid, I think it was 4,500 to $5,500 to Oliver John Butler. Oliver John Butler testified that he paid him back 4,000, but the notes reflected $8,500; so he gets the money out of his estate while his divorce is going on and he gets the money and the bank roll, he gets the money out of the estate when his divorce is going on. And the whole thing is a masquerade.”


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    Annette Downs CLARKSTON, Appellant, v. Lewis E. CROUCH, Sr., et al., Appellees.
    No. 5500.
    Court of Civil Appeals of Texas, Waco.
    Jan. 29, 1976.
    Rehearing Denied Feb. 26, 1976.

      Seymour, Hawtrey & Ryan, Sarah Ryan, Bryan, for appellant.
    Barron & Barron, John M. Barron, Bryan, Bond & Falco, James Bond, Navasota, for appellees.
   OPINION

JAMES, Justice.

This is a case which was originally filed by Plaintiff-Appellee Crouch as a partition suit of real estate, with a cross-action by Defendant-Appellant Annette Downs Clarkston in trespass to try title. Defendant-Appellant failed to appear at the trial either in person or by attorney, at the conclusion of which the trial court entered a default judgment adverse to Defendant-Appellant, from which she appeals. We affirm.

Plaintiff-Appellee Lewis E. Crouch, Sr., instituted this suit against Defendant-Appellant Annette Downs Clarkston for partition of a tract of land located in Brazos County, Texas, originally referred to as being the same two acre tract described in a deed from Bessie Crouch Weimar, et al. to Annette Downs Clarkston dated April 18, 1970, of record in Volume 286, page 254 of the Deed Records of Brazos County, Texas. However, the property was further described by metes and bounds and was recited to contain 1.690 acres as surveyed by Evans Moody, a registered surveyor on March 27, 1974. Plaintiff asserted he owned an undivided 2/7ths interest in the tract, and the Defendant Annette Downs Clarkston owned the remaining 5Aths undivided interest. It was further alleged that Plaintiff’s sister Edna Crouch Landry owned a “move-on house” situated on said tract which was Mrs. Landry’s personal property and not a part of the real estate to be partitioned. Plaintiff prayed for partition in kind of the subject two acre tract and in the alternative for a sale of the property and division of the proceeds.

In addition to her answer, Defendant Annette Downs Clarkston filed a cross action against Plaintiff Lewis E. Crouch, Sr., in trespass to try title, asserting that she and Plaintiff Crouch were tenants in common not only in the two acre tract set out in Plaintiff’s petition, but also in a specifically described three acre tract which adjoins the two acre tract. She alleged herself to own an undivided 5Aths interest in the five acres, (the two acre and three acre tracts) and Plaintiff Crouch to own an undivided 2/rths interest therein. Her claim to the VHAs interest in the five acres was based upon a deed hereinabove referred to from Bessie Crouch Weimar and four other grantors to Defendant Annette Downs Clarkston dated April 18, 1970, of record in Volume 286, page 254 of the Deed Records of Brazos County, Texas, wherein the five grantors conveyed their undivided interests to Defendant in and to a tract of land described by metes and bounds as being the same two acre tract described in Plaintiff Crouch’s petition, the description of which tract is immediately followed by this language: “It being our intention by this deed to convey all property presently under fence, owned and claimed by Grantors and known as the ‘J. P. Crouch and Della Crouch homeplace.’ ” Defendant Clarkston contends that it was the intention of all parties by the language in this deed that such deed conveyed to her (Defendant) not only the two acre tract, but also the three acre tract. She prayed for partition in kind of both the two acre and the three acre tracts, and in the alternative for sale of same and division of the proceeds.

Meanwhile, Bessie Crouch Weimar and six other Crouch heirs filed a plea in intervention in which, among other things, they contended that Defendant Annette Downs Clarkston owned no interest whatsoever in the three acre tract. Intervenors further asserted that “the old J. F. Crouch and Della Crouch homeplace” was the two acre tract only, and did not include the three acre tract, and that Plaintiff Lewis E. Crouch, Sr., and Intervenors jointly were the sole owners of the three acre tract.

Plaintiff-Appellee Lewis E. Crouch, Sr., filed Supplemental Pleadings in which he contended inter alia that Defendant-Appellant Clarkston got title to Vrths of the two acre tract only by virtue of the 1970 deed from Bessie Crouch Weimar, et al. herein-above referred to. He further asserted that “it has been known for years” that the Crouch home place consisted of the two acre tract, and that the three acre tract was not a part of the home place, and therefore Defendant Clarkston acquired no title whatsoever to the three acre tract by virtue of the said 1970 deed from Bessie Crouch Weimar, et al.

Trial was had before the court without a jury, at which Plaintiff-Appellee Lewis E. Crouch, Sr., and the Intervenors appeared, but at which the Defendant-Appellant Annette Downs Clarkston did not appear either in person or by attorney. In this connection the trial court’s judgment recites: “_and it having been announced to the court that Defendant aforesaid, though having regularly employed counsel until the day before, April 2, 1975, was on the 3rd day of April, 1975 without counsel through no fault of her counsel, and Defendant though fully notified, failed to appear either in person or by counsel, and no valid excuse having been given for such failure of Defendant to appear; and a jury having been timely offered by the court to Defendant for trial on this date aforesaid, but a jury having been expressly waived by Defendant and all matters submitted to the court for determination_”

After hearing evidence, the trial court entered judgment, the pertinent substance of which is as follows:

(1) Plaintiff Lewis E. Crouch, Sr., was awarded an undivided 2/7ths interest in the two acre tract, and Defendant Annette Downs Clarkston was awarded an undivided 5/rths interest in said two acre tract.

(2) Intervenor Edna Crouch Landry was awarded the “move-on house,” with provision that upon partition in kind of the two acre tract, that said house be situated upon the portion to be awarded to Plaintiff Crouch.

(3) Plaintiff and Intervenors were awarded title and possession of the three acre tract (which was described in the judgment by metes and bounds and recited to actually contain 4.020 acres), and Defendant Clarkston was “fully divested of any right, title or interest in said 4.020 acre tract of land_”

(4) Commissioners of partition were appointed and the two acre tract was ordered partitioned in kind.

Prom this judgment, Defendant-Appellant Clarkston appeals to this court upon five points of error. We overrule all of Appellant’s points of error and affirm the trial court’s judgment.

Appellant’s points one through four inclusive assert that the metes and bounds descriptions of both tracts of land were legally insufficient because of their uncertainty and for the further reason that such descriptions (as well as the bill of sale to the “move-on house”) were neither offered nor admitted into evidence. Prom the record before us we cannot agree with these contentions.

Plaintiff’s Exhibit No. 1 consisted of two sets of field notes covering the two tracts of land in question, together with a plat showing both tracts. The first set of field notes recited that it was the same three acre tract described in the deed from H. B. Chase, et ux., to James F. Crouch dated February 11, 1902, of record in Volume 25, page 296, Deed Records of Brazos County, Texas, followed by a metes and bounds description which showed that said tract contained 4.020 acres, and ended with a certificate that it had been surveyed by Evans Moody on March 27, 1974.

The second set of field notes recited that it was the same two acre tract described in the deed from Bessie Crouch (Weimar), et al. to Annette Downs Clarkston dated April 18, 1970, of record in Volume 286, page 254, Deed Records of Brazos County, Texas, followed by a metes and bounds description which showed that said tract contained 1.690 acres, and ended with a certificate that it had also been surveyed by Evans Moody on March 27,1974. The plat of both tracts was shown to have been prepared by Evans Moody.

As stated before, the trial in question was a defaulted hearing wherein the Defendant-Appellant was not present in person or by counsel. Evans Moody, a licensed surveyor, testified that he surveyed the two Crouch tracts by “running the fence lines”, and each tract was enclosed by fence, and the two tracts adjoined each other. Plaintiff’s Exhibit No. 1 (consisting of the two sets of field notes and plat as hereinabove described) was marked by the court reporter, was handed to Evans Moody who identified the same as having been prepared by him after he had surveyed the two tracts, the exhibit was laid upon the Judge’s desk (or bench), and the Judge picked it up and read it, all without any objection having been made. Moreover, the trial court used both these sets of field notes in the preparation of its judgment, and said court specifically recited in its order overruling motion for new trial that_“all exhibits were actually received and considered by the Court, said exhibits having actually been handed the Court and received as evidence and considered by the Court_” The exhibits are all included in the statement of facts. Under this state of the record, we hold that the property descriptions in question were offered and admitted in evidence. See Newbern v. Spiro (Dallas CA 1965) 387 S.W.2d 769, no writ.

Likewise, the bill of sale of the “move-on house” in question was handed to the witness Mrs. Edna Crouch Landry, the alleged owner of said house, and identified by her as being the bill of sale to the house she claimed to own located on the two acre tract. This bill of sale was marked by the court reporter as Plaintiff’s Exhibit No. 7. This exhibit, along with all the other exhibits, was specifically found by the trial court to have been handed to and received as evidence and considered by said court.

The property descriptions contained in Plaintiff’s Exhibit No. 1 are not void for want of certainty, because each metes and bounds description is respectively tied in by reference to an existing deed description, relied upon by Appellant. Appellant’s points one through four are overruled.

Appellant’s fifth and final point asserts error of the trial court in overruling her motion for new trial because she says her failure to appear for trial was the result of “a misunderstanding and mistake between her counsel and herself,” and that she had a meritorious claim. We overrule this contention.

In a default judgment situation as here, wherein the Defendant-Appellant seeks to set aside same, the burden is upon Defendant-Appellant to show that she is free of negligence or conscious indifference in failing to appear. Harris v. Lebow (Dallas CA 1962) 363 S.W.2d 184, NRE. The burden is upon the movant (here the Defendant-Appellant) to show that (1) the failure to appear was not intentional or the result of conscious indifference on her part, but was due to a mistake or accident, and (2) the motion sets up a meritorious defense, and (3) the motion was filed at a time when the granting thereof would occasion no delay or otherwise work an injury on the plaintiff. Craddock v. Sunshine Bus Lines (Comm.App.1939), 134 Tex. 388, 133 S.W.2d 124, opinion adopted by the Supreme Court; Ivy v. Carrell (Tex.1966), 407 S.W.2d 212.

In the case at bar, the trial court heard evidence at a hearing on Appellant’s motion for new trial, after which Appellant’s motion for new trial was overruled. Considerable evidence was presented relative to whether Appellant’s failure to appear for trial was intentional or was the result of accident (or mistake). Without detailing this evidence, suffice it to say that the testimony was conflicting on this point. The trial court by its action in overruling Appellant’s motion for new trial impliedly found and resolved this issue adversely to Appellant. Additional evidence adduced on the hearing of the motion shows that a witness material to the Appellees’ case was in attendance on the trial from the State of Maryland; and that other, elderly witnesses might not again be able to attend. In this state of the record we are not authorized to disturb the trial court’s finding. The appellant has failed to establish the essential requirement that her failure to appear for trial was not intentional or was not the result of conscious indifference on her part, or that the granting of a new trial would not work an undue hardship on Appellee.. Appellant’s fifth point is therefore overruled.

Judgment of the trial court is affirmed.

Affirmed.


author: GUITTARD, Justice.

text:
    In the Matter of T_ R_ W_ a child.
    No. 18806.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 29, 1976.

      Charles M. Wilson, III, Carter, Jones, Ma-gee, Rudberg, Moss & Mayes, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton, Asst. Dist. Atty., Dallas, for appel-lee.
   GUITTARD, Justice.

This is an appeal from an order committing the appellant, a fourteen-year-old boy, to the custody of the Texas Youth Council. Appellant appeals only from the commitment order and not from the associated order adjudicating him a child engaged in delinquent conduct. We reverse and remand with instructions.

Appellant attacks the commitment order on the ground that it does not specifically state the reasons for this disposition as required by Tex. Family Code Ann. § 54.-04(f) (Vernon 1975), which provides:

The court shall state specifically in the order its reasons for the disposition and shall furnish a copy of the order to the child. If the child is placed on probation, the terms of probation shall be written in the order. [Emphasis added.]

Appellant also challenges the sufficiency of the evidence to support the commitment. We agree that the order fails to state specifically the reasons for the disposition. In the absence of a statement of the reasons, we cannot properly pass on the sufficiency of the evidence.

The trial court held separate, successive adjudication and disposition hearings as required by §§ 54.03 and 54.04 of the Family Code, and then entered a combination order stating the results of both. The adjudication portion of the order recites a finding that appellant had engaged in delinquent conduct in that he had committed the offense of theft of property on two occasions. The disposition portion of the order provides:

On the 15th day of August, 1975, all parties being present, the court reconvened for the disposition hearing, and after hearing the testimony finds that for the protection of the public and to rehabilitate said child the following order is entered:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the court that the said [T_R_W_] be, and hereby is, found to be a child engaged in delinquent conduct and is committed to the Texas Youth Council of the State of Texas.

Appellee says that the reasons for commitment are supplied by reading the combined order as a whole. Appellee points to the recitation in the adjudication portion of the order that the child had committed two offenses of theft of property and the recitation of the need for protection of the public and rehabilitation of the child as reasons sufficient to comply with § 54.04(f). We cannot agree. The recitation of the offenses is required by § 54.03(h), which provides that the adjudication order shall “state which of the allegations of the petition were found to be established by the evidence.” This statement of the offenses in an order of adjudication, even though combined in the same document with the order of disposition, does not constitute a specific statement of the reasons for disposition as required by § 54.04(f) without a specific recitation of the offense as a reason for disposition, or some other indication that the trial court so intended. We need not decide whether the nature of the conduct for which the child is adjudged delinquent at the adjudication hearing may be a sufficient reason for a particular disposition at the disposition hearing, if specifically so recited in the disposition order.

Likewise, the recitation of a need for protection of the public and for rehabilitation of the child is required by Tex. Family Code Ann. § 54.04(c), which provides that the court shall dismiss the child and enter a final judgment without any disposition “unless the court finds that the child is in need of rehabilitation or that the protection of the public or the child requires that disposition be made.” We are not persuaded that this general recitation in statutory language is a specific statement of reasons for the disposition, as required by § 54.04(f). We conclude, rather, that if a disposition of the child is required for the protection of the public or to rehabilitate the child, then subdivision (f) requires the court to state its reasons for selecting one of the dispositions authorized by § 54.04(d), which provides:

If the court makes the finding specified in Subsection (c) of this section, it may:
(1)place the child on probation on such reasonable and lawful terms as the court may determine for a period not to exceed one year, subject to extensions not to exceed one year each:
(A) in his own home or in the custody of a relative or other fit person;
(B) in a suitable foster home; or
(C) in a suitable public or private institution or agency, except the Texas Youth Council; or
(2)if the court or jury found at the conclusion of the adjudication hearing that the child engaged in delinquent conduct, the court may commit the child to the Texas Youth Council.

The present order fails to state why the court decided to commit appellant to the Texas Youth Council rather than to impose some type of probation. Specification of the reasons for the disposition in an order and furnishing a copy to the child, as subdivision (f) requires, provide assurance that the child and his family will be advised of the reasons for commitment and will be in a position to challenge those reasons on appeal. The appellate court may then review the reasons recited and determine whether they are supported by the evidence and whether they are sufficient to justify the particular disposition ordered. Without a specific statement of the reasons for disposition, a reviewing court is left to rely on assumptions in judging the trial court’s action.

This construction of § 54.04(f) is supported in principle by In re J.R.C., 522 S.W.2d 579, 583 (Tex.Civ.App.—Texarkana 1975, writ ref’d n. r. e.) which construed similar language in § 54.02(h) of the Family Code. That section provides that in certain cases a juvenile court may waive its jurisdiction and transfer a child to the district court for criminal prosecution if certain facts are found to exist, and it further provides that if the court waives jurisdiction, “it shall state specifically in the order its reasons for waiver.” In reversing an order which failed to specify reasons, the appellate court noted that “reasons” are distinguishable from “findings” and said that by requiring a specification of “reasons” the legislature “meant that the Juvenile Court must set out the rationale of its order, and that is, the rational basis of the court’s conclusion or motive that constrained entry of the order waiving jurisdiction.” We conclude that a similar interpretation should be given to the almost identical language in § 54.04(f).

Appellant also complains that the judge erred in committing appellant to the custody of the Texas Youth Council because a foster home was available. Appellant contends that the commitment is an abuse of discretion and is supported by no evidence, or, in the alternative, by insufficient evidence. Because of the lack of a specific statement of the reasons for disposition, we are unable to pass on these points.

Since the disposition order must be reversed, we must determine whether the order may be corrected or whether a new disposition hearing is required. We conclude that since § 54.04(a) precludes the right to a jury trial, and since the trial court has already heard the evidence, no new hearing is required unless the trial court should decide that further evidence would be helpful in making a proper disposition. Consequently, we reverse the order of disposition and remand the disposition matter to the trial court with instructions to enter a proper order in accordance with this opinion. We leave to the trial court’s discretion whether further evidence will be heard or a new disposition hearing required. The court may also decide whether to make the same or a different disposition. Regardless of whether the court decides to hear additional evidence, it is instructed to enter an order stating specifically the reasons for the disposition, and this order will be subject to further appeal and review by this court. The order adjudicating appellant a delinquent is not disturbed.

Reversed and remanded with instructions.


author: REYNOLDS, Justice.

text:
    Jimmie Lee FREY et al., Appellants, v. The ESTATE of George S. SARGENT, Deceased, Appellee.
    No. 8634.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 30, 1976.
    Rehearing Denied Feb. 23, 1976.

      Lemon, Close, Atkinson & Shearer, Otis C. Shearer, Perryton, for appellants.
    Allen, Gaines & Roberson, Ronnie Gaines, Perryton, for appellee.
   REYNOLDS, Justice.

A take-nothing judgment was rendered in this action for the breach of an antenup-tial agreement filed by the lineal descendants of the first deceased signer against the estate of the other deceased signer. In appealing, plaintiffs contend that the law of Oklahoma, where the agreement was executed, is applicable to sanction recovery rather than the law of Texas, the only place designated for performance, which defeats their recovery. The facts underlying the action invoke the application of Texas law. Affirmed.

Ruby Frey, a 60-year-old widow residing in Ochiltree County, Texas, and George S. Sargent, an 80-year-old single man of Beaver County, Oklahoma, each having lineal descendants from a prior marriage, executed in Oklahoma a prenuptial agreement in contemplation of marriage. Expressing an order of descent of Texas property contrary to the then existing provisions of Vernon’s Ann.Civ.St. art. 4610 (1840) but embracing a saving clause, the agreement contains these paragraphs material to the cause of action:

II.
The parties contemplate that after such marriage they may reside in Frey’s home in Perryton, Texas, or they may acquire a new home in Perryton, Texas. .
III.
During the lifetime of Sargent, Sargent expressly agrees:
* * * * ⅜ *
c. That he will forthwith after the consummation of such marriage execute a proper and valid will bequeathing to Frey
(1) $30,000.00 in cash;
******
IV.
Each of the parties hereto, covenant and agree that each will endeavor to the best of his or her ability to please the other and Frey expressly agrees that she will take care of Sargent for as long as she is able to do so, taking into consideration the respective physical condition of the parties hereto.

After their marriage, George executed in Oklahoma his will bequeathing $30,000 cash to Ruby. They made their home in Ruby’s house in Perryton, Texas. Approximately two and one-half years later Ruby died. At that time under Texas law, the bequest lapsed. Bomar v. Carstairs, 124 Tex. 492, 79 S.W.2d 841, 846 (1935). Some six months thereafter, George executed in Oklahoma another will, revoking all prior wills and omitting the bequest previously made to Ruby, which remained in effect at his death more than four years later in Oklahoma.

Ruby’s lineal descendants filed their claim for $30,000 against George’s estate. The claim was rejected, this action was filed, and the court, sitting without the intervention of a jury, rendered judgment that plaintiffs take nothing.

Even though the antenuptial agreement was executed in Oklahoma, its terms do not require that any part of the agreement be performed there. The parties specified that Ruby’s care of George, the consideration upon which plaintiffs rely for the promise of the bequest, was to be ministered at Ruby’s home, or a new home, in Perryton, Texas. Under these circumstances, the majority rule is that the contract is to be governed by the law of the jurisdiction where its terms are to be performed, particularly when that jurisdiction is the only place designated for performance. Stumberg, Principles of Conflicts of Law (3rd Ed. 1963), pp. 232-33. Texas adheres to this rule. Castilleja v. Camero, 414 S.W.2d 424, 426 (Tex.1967); Byers v. Brannon, 30 S.W. 492 (Tex.Civ.App.—1894, writ ref’d).

The agreement is one of a personal nature. It required personal performance by Ruby and not by her heirs. There is nothing in the agreement evidencing any intention that the bequest should go to Ruby’s heirs in case she predeceased George. In this situation, Texas law is that no right vested in Ruby’s heirs. Moran v. Wotola Royalty Corporation, 123 S.W.2d 692 (Tex.Civ.App.—Fort Worth 1939, writ ref’d).

The judgment is affirmed.


author: YOUNG, Justice.

text:
    Dorothy H. BONHAM, Appellant, v. Matthias BALDESCHWILER, Appellee.
    No. 926.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 30, 1976.
    Rehearing Denied Feb. 26, 1976.

      Charles R. Cunningham, Corpus Christi, for appellant.
    B. Mills Latham, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lee.
   OPINION

YOUNG, Justice.

This automobile rear end collision case was first considered by this Court in June of 1975. Our opinion is reported at 525 S.W.2d 707. The Supreme Court granted writ of error, reversed and remanded the case to this Court for determination of the appellant’s assignments of error relating to Special Issue 8. Their opinion is reported at 529 S.W.2d 770.

Dorothy H. Bonham was involved in two automobile accidents only four days apart. The first was on March 30, 1971, and the second was on April 8,1971. She instituted this litigation to recover for injuries she received in the April 3 accident.

The facts are as reported in our original opinion. A brief recount of those facts will suffice here. The jury returned findings that the complained of acts of the defendant Matthias Baldeschwiler were not negligent and that the plaintiff Bonham was not injured. Judgment was entered for the defendant upon these findings. This Court reversed and remanded upon our determination that the jury’s finding of no negligence was against the great weight and preponderance of the evidence. We did not consider the appellant’s point of error about the jury’s finding of no injury. If we overrule this point, and any related points, the decision of the trial court must be affirmed. See Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958). If we sustain, our original reversal and remand must obtain.

Special Issue 8 inquired of the jury, “Do you find from a preponderance of the evidence that Dorothy H. Bonham was injured as a result of the collision in question on April 3, 1971?” The jury responded “No.” The burden was properly upon Bonham to obtain an affirmative response from the jury on this issue.

Appellant contends in her point 6 that the evidence conclusively shows as a matter of law that she was injured on April 3 or that her injuries of March 30 were aggravated on April 3. Alternatively, she urges that the finding of no injury is against the great weight and preponderance of the evidence. In considering the appellant’s first contention it is necessary for us to first examine only that evidence favorable to the jury finding. See Calvert “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).

There appears to be no dispute that Bon-ham was injured. The vital issue in dispute here is whether Bonham was injured in the accident on April 3. The evidence offered by Bonham to prove that she was injured on April 3, or that the April 3 accident aggravated her injuries that she received on March 30, consisted of her testimony and that of one of her treating physicians, Dr. Lawrence Wilk. Both witnesses were extensively cross-examined in an effort to discredit their testimony. The evidence that was before the jury that would tend to discredit the evidence of injury on April 3 and support the jury’s answer to Special Issue 8 is embodied in the testimony of those two witnesses.

Dr. Wilk, the only medical expert offered by Bonham, was not consulted by her until almost a year following the accident. In this regard, the following questions were put to Dr. Wilk on cross-examination.

“Q Is it difficult for you to say what accident caused what injury after that period of time?
A Yes, uh-hum.
Q As a matter of fact, it would be impossible to say.
A That’s right.
Q Impossible to say whether she was injured in this accident, received all of her injuries or some of her injuries or impossible whether to say she was hurt in this accident or received some injuries or all of the injuries.
A That’s all I can go by, is the history.
Q Impossible to say whether she received injuries in this accident and aggravation in this accident, isn’t that true?
A That’s what the history stated, yes.”

After the two accidents, but before the first visit with Dr. Wilk, Bonham was treated by a chiropractor. Dr. Wilk recommended that she stop seeing the chiropractor. The cross-examination of Dr. Wilk continued with the suggestion that these chiropractic treatments could have possibly been the source of Bonham’s injury. At one point, Dr. Wilk is asked to disregard what Bonham told him about her injuries and to base his answer only upon his examination of her. The question put to the doctor is in this form:

“Q So, you couldn’t distinguish what, if any, injuries she received in the 30th. You couldn’t distinguish what, if any, injuries she received on the 3rd, and then you couldn’t distinguish what, if any, injuries or aggravation she received from the chiropractor.
A That’s correct.”

Support for the jury’s answer of no injury on April 3 is also found in the testimony of the appellant Bonham. She denied being injured when questioned by the policeman investigating the April 3 accident. She explains that she initially believed that she was not seriously injured and believed that she could treat herself. She admits that she cannot differentiate between the injuries received in the two accidents.

The foregoing is merely some of the evidence which the jury could have considered as discrediting the testimony of the two witnesses and as a basis for the “No” answer to Special Issue 8. As we have noted, the burden was upon Bonham to establish by a preponderance of the evidence that she was injured on April 3. It is not necessary that we find evidence that she was not injured. Appellant’s legal sufficiency contention is overruled.

The appellant also contends that the jury’s answer of “No” to the injury question is contrary to the great weight and preponderance of the evidence. We must now consider all of the evidence to include that which is favorable to the appellee’s viewpoint, and the evidence and inferences in favor of the appellant. Traylor v. Goulding, 497 S.W.2d 944 (Tex.Sup.1973).

The appellant called several lay witnesses to testify in general as to the appellant’s health after the two accidents. The pertinent evidence, however, that would establish that the appellant was injured on April 3 is found in the testimony of Bonham and Dr. Wilk. Bonham testified, of course, that she was injured on both dates. Dr. Wilk’s testimony was that, based on reasonable medical probability, Bonham was injured in both accidents and that the April 3 accident aggravated the injuries she received on March 30.

Appellant contends that the cross-examination of Dr. Wilk did no more than elicit mere possibility or “could have” type of evidence that Bonham may have received her injuries in some other way than the automobile accidents, or that the injuries could have been aggravated by some chiropractic treatment. And upon redirect-examination, Dr. Wilk reaffirmed his previous assertions as follows:

“Q Doctor, have there been anything at all on cross-examination or anything that Mr. Latham has gone into that would change your initial testimony based on reasonable medical probability that Mrs. Bonham was hurt on March 30th, 1971, and that subsequently she was hurt again on April 3, 1971 and that the second accident aggravated the first injury?
A No, there would be nothing to make me change my mind.
Q Is that still your opinion, Doctor, based on reasonable medical probability?
A. Yes, it is.”

The appellant’s argument is not persuasive. We cannot say that the jury’s answer of “No” to the injury question is so against the great weight and preponderance of the evidence so as to be manifestly unjust. The appellant’s point of error 6 is overruled.

Appellant complains, in points 1 and 2, of the court’s refusal to grant her motion for mistrial and motion for new trial. Appellant contends that these motions should have been granted because of newly discovered evidence of the allegedly fraudulent testimony of Baldeschwiler.

Baldeschwiler was called by the appellant under the adverse party rule and he testified that he was driving his daughter’s Volkswagen at the time of the accident. When asked if he had the car repaired, he answered that he did. His response to the question of what was the cost of those repairs was, “I think it was $75 to $80.”

Similar questions were propounded, under Rule 168, T.R.C.P., by the appellant in interrogatories to Baldeschwiler prior to trial. These questions were not answered and appellant did not file a motion under that rule to compel an answer to the interrogatories. Nor did appellant move for a continuance.

Subsequent to trial appellant caused to issue a subpoena duces tecum to obtain the repair estimate prepared for the insurance carrier. The estimate was produced and reflected an amount of $377.06 to repair the damages to the Volkswagen sustained in the accident. The estimate was prepared by McKenzie Volkswagen, Inc. of Corpus Christi, Texas, on April 5, 1971. The insurance carrier is listed as State Farm. The name of the party for which the estimate was made is M. F. Valdeschwiler of 921 Sheppard; apparently B aldeschwiler. The parties then stipulated that this represented an estimate of repair cost. The above evidence was introduced at the hearing on the appellant’s motion for mistrial. The motion was denied and the motion for new trial was overruled by operation of law.

Baldeschwiler’s attorney argued to the jury that because the cost of repair to the Volkswagen was less than $100.00, the accident of April 3 was very minor and could not therefore have caused much damage to Bonham. Bonham contends that this misstatement of the cost of repairs supported this argument and thus prejudiced the jury against a finding of damage to her (Special Issue 8). Appellee answers that this statement was not an attempt to deliberately mislead. He points out that the trial was three years after the accident; that the Volkswagen was not his; and that his statement is not shown to be other than an opinion of what he thought the cost of repairs to be. He also argues that the repair estimate and the stipulation are simply opinions and not proof of the actual cost of repairs.

Granting a new trial upon newly discovered evidence is within the sound discretion of the trial judge. Unless an abuse of discretion is shown, the decision will not be disturbed on appeal. Mercer v. Mercer, 503 S.W.2d 395 (Tex.Civ.App.—Corpus Christi 1973, no writ); Munden v. Chambless, 315 S.W.2d 355 (Tex.Civ.App.—Dallas 1958, writ ref’d n. r. e.). Upon the hearing on the motion, the movant must show, among other things, that the evidence was not available at the time of trial. New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864, 866 (Tex.Sup.1962); In re Y, 516 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Austin v. Gallaher, 417 S.W.2d 363, 368 (Tex.Civ.App.—San Antonio 1967, writ dismissed). Bon-ham has not satisfied this non-availability of evidence requirement. The repair estimate was prepared approximately three years prior to trial. The record does not reflect that it was not available to Bonham through discovery available to her. Indeed, the very manner in which she eventually procured it is indicative of its availability. The appellant’s points 1 and 2 are overruled.

Appellant contends in point 3 that the court erred in admitting evidence of a third party action. The record reflects extensive references to the litigation of the March 30 accident. Bonham and her witnesses were cross-examined as to their testimony in the prior trial.

Generally it is error to admit evidence of prior claims to show that the plaintiff is claims minded. See 2 McCormick and Ray, Texas Evidence § 1526 (1956). When the evidence, however, is offered to show statements which are inconsistent with the party’s present position, it is receivable as an admission against interest. St. Paul Fire & Marine Insurance Company v. Murphree, 163 Tex. 534, 357 S.W.2d 744, 747 (1962). It has also been recognized that it is proper to allow a party to be fully cross-examined as to previous injuries, claims and actions to show that his present physical condition is not the result of the injury presently sued for, but was caused in whole or in part by an earlier or subsequent injury or a pre-existing condition. Robertson v. Southwestern Bell Telephone Company, 403 S.W.2d 459, 468 (Tex.Civ.App.—Tyler 1966, no writ). See Franco v. Graham, 470 S.W.2d 429 (Tex.Civ.App.—Corpus Christi 1971), aff’d 488 S.W.2d 390.

The appellee’s argument at trial was that Bonham had previously claimed the same damages in the trial concerning the March 30 accident. Under these circumstances, the evidence was properly admitted. Point 3 is overruled.

In her point 4, appellant complains of references in the jury argument by ap-pellee’s attorney to the third party action and the testimony of the appellee about the cost of repairs to the Volkswagen. If there was no error, as we have held in the forepart of this opinion, about the introduction of evidence on the third party action and the cost of repairs, then there was no error to refer to those matters in the jury argument. Point 4 is overruled.

The appellant claims, in her point 7, that because of the accumulation of errors set out in her other points, this case should be reversed. For the reasons we have discussed about those points, we overrule this point 7.

The judgment of the trial court is therefore affirmed.

NYE, C. J., not participating.


author: PHILLIPS, Chief Justice. SHANNON, Justice

text:
    H. E. DuBOIS, Individually and as Independent Executor of the Estate of Genevieve Rix Fitzwilliam, Deceased, Appellant, v. Cleve W. JACOBS, Jr., et ux., Appellees.
    No. 12344.
    Court of Civil Appeals of Texas, Austin.
    Feb. 4, 1976.
    Rehearing Denied Feb. 18, 1976.

      James T. Odiorne, Bastrop, for appellant.
    Allen L. McMurrey, Bastrop, for appel-lees.
   PHILLIPS, Chief Justice.

This suit was brought by appellees under the provisions of the Uniform Declaratory Judgments Act for judicial construction of a mineral reservation in a deed. The question is whether the grantor, now deceased, intended to reserve a one-half royalty interest in perpetuity, as is contended by the appellant, or only for her natural life as asserted by appellees. The trial court found as a conclusion of law that the deed was ambiguous and its terms in conflict. After admitting extraneous evidence, e. g., the contract to deed, the court rendered summary judgment for appellees.

Appellant brings two points of error, contending first that the trial court erred in concluding that as a matter of law the deed in issue was so ambiguous and its terms so conflicting that it could not be construed without resort to extraneous documents, and second, that the trial court erred' in admitting into evidence over appellant’s objection the contract for deed.

We sustain both points of error and consequently, hold that summary judgment was improvidently granted.

The reservation in the deed is as follows:

“Save and except and reserved in favor of the undersigned, Genevieve Rix Fitzwil-liam, her heirs and assigns, out of all of the property above described an undivided ½ royalty of all the oil, gas and/or other minerals in, to and under or that may be produced from the above described properties to be paid or delivered to Genevieve Rix Fitzwilliam, free of cost, for the term of the natural life of the grantor herein; provided that the interest hereby retained shall be one-half (½) of all royalty interest(s) retained, reserved or granted by the holder(s) of the leasehold interests, whether by overriding royalty or otherwise. The grantor herein reserves the right of ingress and egress at all times for the purpose of storing, treating, inspecting, marketing and removing such minerals so produced from the properties.

“Said interest hereby reserved is a nonparticipating royalty, and shall not participate in the bonuses paid for any oil, gas or other mineral leases covering said land, nor shall it participate in the money rentals which may be paid to extend the time within which a will may be begun under the terms of any lease covering said land. Further, it shall not be necessary for the undersigned, her heirs and assigns, to join in the execution of any leases covering the royalty interest herein reserved, and the grantees, their heirs and assigns, shall have the right to lease said land for oil, gas and other minerals, provided, however, that such lease shall provide for royalties of not less than ⅛:

“a) On all oil, gas and other minerals, liquid or solid, which are produced from the above described properties.
“b) On the proceeds from all liquid hydrocarbons, such as gasoline, butane and protane, or any other manufactured or processed by-products, extracted or recovered from natural gas or casing head gas, produced from such properties.
“c) On the proceeds derived from residue gas, or its by-products, produced from such properties.

“In the event oil, gas or other minerals are produced from said land, then the grantor herein, her heirs and assigns, shall receive not less than Vie portion (being equal to ½ of the customary Vs) royalty of the entire gross production from the properties herein described, to be paid or delivered to the grantor, her heirs and assigns, free from all costs from royalty oil, gas and other minerals, by-products, manufactured or processed therefrom. However, in the event that grantees, their heirs or assigns, grant, retain or reserve a royalty interest or overriding royalty interest in excess of ⅛, then the interest hereby retained shall be equal to ½ of such interest(s) so granted, reserved or retained.

“Nothing herein contained shall grant to the grantor, her heirs or assigns, the right to pool the royalties above reserved in favor of the grantor herein.”

Appellees contend that the reference in the first sentence of the above quoted reservation to the effect that the production payments be delivered to the grantor, free of cost, for the term of her natural life, created an ambiguity in the instrument as to whether the grantor intended to reserve a perpetual royalty interest or merely one for her life. Appellees further contend, due to this ambiguity, that the trial court was correct in considering summary judgment proof such as the contracts of sale entered into between the parties before the execution of the deed itself in order to determine the extent of the estate the grantor intended to reserve. In support of this theory, appellees cite Humble Oil & Refining Co. v. Ellison, 134 Tex. 140, 132 S.W.2d 395 (Tex.Com.App.1939, opinion adopted); Wilson v. Giraud, 111 Tex. 253, 231 S.W. 1074 (1921); Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629 (Tex.Com.App.1935, opinion adopted), among others. As we find no ambiguity in the deed, these cases are not in point.

In our opinion the intent of the grantor is clear from the reservation as written and the deed must be honored as drawn. Throughout the reservation, the grantor refers to her “heirs and assigns” in describing the extent of the reservation. Although technical words are not essential to describe a conveyance (or a reservation in a conveyance), when an estate in land is couched in language appropriate for indicating its purpose and effect, the court will not by construction give it a different effect, 19 Tex.Jur.2d Deeds, § 47, at 308 (1960).

If possible, the court must construe the language of a deed so as to give effect to all provisions therein, and not strike down any part of the deed, unless there is an irreconcilable conflict wherein one part of the instrument, in effect, destroys another part thereof. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953). In Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617 (1954) the court held that even when different parts of an instrument appear to be contradictory and inconsistent, the court will harmonize, if possible, the parts and construe the instrument in such a way that all parts may stand.

We find neither an irreconcilable conflict nor any ambiguity in the reservation in question. The grantor has repeatedly referred to herself, her heirs and assigns in describing the extent of the reservation. This terminology has long been held in this state to be words of limitation denoting a fee interest with rights of inheritance and alienability. Zahn v. National Bank of Commerce of Dallas, 328 S.W.2d 783 (Tex.Civ.App.1959, writ ref’d n. r. e.); Texas Co. v. Meador, 250 S.W. 148 (Tex.Com.App.1923, jdgmt. adopted); Johnson v. Morton, 28 Tex.Civ.App. 296, 67 S.W. 790 (1902, writ ref’d); Holden v. Murphy, 62 S.W.2d 189 (Tex.Civ.App.1933, writ ref’d); 19 Tex. Jur.2d Deeds, § 109, p. 915 (1960); Black’s Law Dictionary at 857 (Rev. 4th ed. 1968).

Inasmuch as the reservation in the deed described and reserved a non-participation royalty interest, the grantor’s reference to the term of her natural life was for the purpose of directing the manner of payment, and had no reference to the duration of the interest retained.

The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

SHANNON, Justice

(concurring).

I concur in the reversal of the judgment.

This is an appeal from the entry of a summary judgment by the district court of Bastrop County.

Appellees, Cleve W. Jacobs, Jr., and wife, Hope E. Jacobs, filed a motion for summary judgment in the declaratory judgment suit which they had filed. The object of the declaratory judgment suit was to obtain the construction by the district court of a mineral reservation in warranty deed signed by Genevieve Rix Fitzwilliam. As stated in the majority opinion, appellant, H. E. Du-Bois, individually and as independent executor of the estate of Genevieve Rix Fitzwil-liam, deceased, contended that the deceased had reserved a one-half royalty interest in perpetuity. Appellees, to the contrary, claimed that the deceased had reserved a one-half royalty interest for the period of her life.

Contrary to Tex.R.Civ.P. 166-A(c) the motion for summary judgment did not “ . . . state the specific grounds therefor.” However, it is observed that in paragraph II of the motion, appellees state that they and the deceased entered into a contract to convey certain real estate and that the contract to convey was attached to the motion for summary judgment. Paragraph II of the motion reads also, “That as an intricate part of such contract, a deed of conveyance was executed thereunder . wherein the said Genevieve Rix Fitzwilliam did convey the real estate to the Plaintiffs [appellees].” An examination of the motion for summary judgment shows that appel-lees attached the contract to convey to the motion and made it a part of the summary judgment proof.

Although inappropriate in a summary judgment proceeding, the district court filed findings of fact and conclusions of law. State v. Easley, 404 S.W.2d 296 (Tex.1966), Gallop v. Seagoville Investments, Inc., 417 S.W.2d 727 (Tex.Civ.App.1967, writ ref’d n. r. e.), Kovac v. Hicks, 416 S.W.2d 496 (Tex.Civ.App.1967, writ ref’d n. r. e.), Reynolds v. Park, 521 S.W.2d 300 (Tex.Civ.App.1975, writ ref’d n. r. e.), Fulton v. Duhaime, 525 S.W.2d 62 (Tex.Civ.App.1975, writ ref’d n. r. e.). The court concluded inter alia that the terms of the deed were “ . . .in such conflict as to render said deed so ambiguous that the nature of the interest reserved to the Grantor cannot be determined until such conflict has been resolved.” The court concluded further that “ . . . as a matter of law that this case should be controlled by the rule announced in certain Texas cases which permit the court to refer to the contract for the conveyance in order to resolve and clear up an ambiguity in the language of the deed.” The court concluded finally that it had examined the contract to convey and based upon that examination “ . . . I find that the deed should be construed as having reserved to the Grantor, during her lifetime an estate consisting of the mineral interest described, and that upon the death of such Grantor said estate was ended.”

Where there is a question as to the meaning of an ambiguous instrument, summary judgment is improper. Thompson v. Hambrick, 508 S.W.2d 949 (Tex.Civ.App.1974, writ ref’d n. r. e.), Robert v. E. C. Milstead Ranching, Inc., 469 S.W.2d 429 (Tex.Civ.App.1971, writ ref’d n. r. e.), Chapa v. Benavides Mill & Gin Company, 420 S.W.2d 464 (Tex.Civ.App.1967, writ ref’d n. r. e.), Tinnin v. Crook, 333 S.W.2d 617 (Tex.Civ.App. 1960, writ ref’d n. r. e.).

      . Tex.Rev.Civ.Stat.Ann. art. 2524-1, § 2 (1965).


author: CIRE, Justice.

text:
    Gaston GAAL d/b/a Detergent Services, Appellant, v. BASF WYANDOTTE CORPORATION, Appellee.
    No. 1348.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 4, 1976.

      Gerald P. Burleson, Burleson & Svetlik, Houston, for appellant.
    Jesse R. Pierce, James E. Doyle, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellee.
   CIRE, Justice.

This is an appeal from an order granting a temporary injunction. Appellant Gaston Gaal was employed as a salesman by appel-lee Wyandotte Corporation for a period of about ten years ending on October 1, 1975. Appellee is engaged in the business of selling institutional detergents. As a salesman for Wyandotte, appellant’s duties included selling his employer’s detergents and installing and servicing appellee’s detergent dispensing equipment on the customers’ dishwashing machines. Appellant entered into an employment agreement with appel-lee in which he agreed not to “carry any sideline or devote any time or effort to any other business or engage in any business or transactions adverse to the Corporation’s interest while employed by the Corporation.

As stipulated by appellant, he and William R. Dudas, also an employee of appellee and a defendant below, organized a business known as Detergent Services and began to do business under that name in competition with appellee prior to the time their employment by Wyandotte was terminated. During that time appellant sold its competing line of detergents to approximately thirty of appellee’s customers and continued to do so and to solicit business from appellee’s other customers until temporarily enjoined.

Appellee filed suit in district court asking damages and injunctive relief. The court granted a temporary injunction prohibiting appellants from

(1) using, installing, removing, replacing, transferring, or disposing of any BASF WYANDOTTE Control System Equipment;
(2) contacting or calling on for the purpose of selling detergent products, or selling detergent products to any present customer of Plaintiff whom Defendants called on while employed by Plaintiff; and
(3) contacting or calling on for the purpose of selling detergent products, or selling detergent products to any former customers of Plaintiff which have purchased any products of Plaintiff’s since January 1, 1975, and which were contacted or solicited by Defendants while employed by Plaintiff.

Appellant asserts that the trial court abused its discretion in granting the temporary injunction because appellee has an adequate remedy at law — i. e., damages — and because appellant is no longer employed by appellee and therefore is no longer subject to the restrictions contained in his employment contract.

It is undisputed that this case does not involve the improper use of trade secrets or the violation of a covenant not to compete. Appellee seeks relief on the basis of appellant’s breach of his employment contract, breach of his fiduciary duty, and unfair competition. Appellant stipulated that he committed the acts alleged; the only question presented here is whether a temporary injunction is proper in this situation.

A temporary injunction may be granted only to preserve the status quo pending final trial on the merits. The applicant must show a probable right and a probable injury to that right if respondent is allowed to continue the action complained of.

The record clearly shows that appel-lee had a contractual and common law right to require appellant to act in good faith towards its customers during appellant’s term of employment. The record also shows that appellant breached this duty by soliciting and capturing business from approximately thirty of appellee’s customers while still employed by appellee, and that appellant continues to do business with these customers, thus harming appellee’s business. Appellant is not entitled to benefit from such unlawful and disloyal conduct and the issuance of a temporary injunction, pending trial on the merits, preventing appellant from doing business with those customers he wrongfully obtained was justified and proper. See Research Equipment Co., Inc. v. Galloway & Scientific Cages, Inc., 485 S.W.2d 953, 956 (Tex.Civ.App.—Waco 1972, no writ).

Appellee has failed, however, to show it has any probable right to prevent appellant from soliciting business from its customers other than those wrongfully obtained during appellant’s employment with Wyandotte. Appellant has a constitutional right, after resigning from his employment, to go into business in competition with his former employer. Ledel v. Bill Hames Shows, Inc., 867 S.W.2d 182, 184 (Tex.Civ.App.—Fort Worth 1963, no writ). Where the former employer’s customer lists are not trade secrets and are readily ascertainable from sources other than the employer’s records, the former employee may legitimately compete with his former employer for those customers. Research Equipment Co., at 956; SCM Corporation v. Triplett Co., 399 S.W.2d 583 (Tex.Civ.App.—San Antonio 1966, no writ). On termination of appellant’s employment, appellee lost its right to prevent appellant from competing for Wyandotte’s customers and therefore has no current right which could be protected by a temporary injunction.

The temporary injunction also prevents appellant from interfering with any of appellee’s equipment. This equipment is loaned by appellee to its customers under an agreement between appellee and the customer entitled “ConTrol Equipment Loan Agreement.” The agreement provides that appellee may remove the equipment from the customer’s premises if the customer discontinues the use of Wyan-dotte’s products. Additionally, Mr. Robert Ferris, appellee’s salesmanager, testified that it is normal procedure in the trade that when a salesman convinces a competitor’s customer to change detergent brands, he removes the competitor’s equipment from the customer’s machine and installs his own. In view of this testimony and the rights of appellee and of its customers to remove appellee’s equipment at any time, appellee has failed to demonstrate a probable right or probable injury which would justify preventing appellant from removing or replacing appellee’s equipment from the premises of any of appellee’s customers, except those solicited away before appellant’s employment was terminated.

The temporary injunction is modified to enjoin appellant Gaston Gaal d/b/a Detergent Services from

(1) contacting or calling on for the purposes of selling detergent products, or selling detergent products to any former customer of BASF Wyandotte Corporation whose account appellant obtained for his own competing business prior to October 1, 1975; and
(2) using, installing, or removing, replacing, transferring, or disposing of any BASF Wyandotte Control System Equipment from the premises of any former customer of BASF Wyandotte Corporation whose account appellant obtained for his own competing business prior to October 1, 1975.

As so modified the judgment of the trial court is affirmed.


text:
    Monnie Ann TIPS, Appellant, v. Donald D. GREEN, Appellee.
    No. 1295.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 4, 1976.
    Rehearing Denied Feb. 25, 1976.

      Paul B. Miller, Jr., Houston, for appellant.
    V. E. Cammack, Jr., Cammack, Harrison, Coman & Brown, Pasadena, for appellee.
   CIRE, Justice.

This is an appeal from an order granting appellee’s plea of privilege. Appellee Donald D. Green and appellant Monnie Ann Tips were divorced in 1969. The divorce decree awarded custody of the parties’ three minor children to appellant. In 1970 appellee filed suit in the Harris County Court of Domestic Relations asking that custody of the children be changed and awarded to him. The judgment in that suit, rendered on September 22, 1970, and approved by all parties and their attorneys as to form and content, awarded custody of two of the children to appellee. Custody of the third child, Lisa Ann Green, was awarded to appellant, and appellee was ordered to make support payments in the amount of $200 per month until Lisa Ann reached the age of eighteen. The payments were to be tendered to the support division of the Harris County Probation Department.

In March 1975, after Lisa Ann had reached the age of eighteen, the court of domestic relations found appellee in default on the child support payments in the amount of $2900 and held him in contempt. The contempt order recites that the court also found appellant had purged himself of the contempt by payment of $1,000. Appellant then filed this suit in the district court to recover the remaining $1900 arrearage, alleging the judgment of September 22, 1970 was a consent judgment and therefore a contract upon which appellee is liable for the full amount of the child support payments ordered therein. Appellee filed his plea of privilege to be sued in Blanco County. Appellant controverted the plea of privilege on the basis of Tex.Rev.Civ.Stat. Ann. art. 1995, § 5 which allows a suit on a contract to be brought in the county in which the contract is to be performed. The trial court sustained appellee’s plea of privilege, finding that the order of September 22, 1970 was not a consent judgment and therefore section 5 did not apply.

Appellee contends this court has no jurisdiction over the order sustaining the plea of privilege because the suit is one affecting the parent-child relationship as governed by section 11.06(f) of the Texas Family Code, which provides that an order transferring or refusing to transfer such a proceeding is not appealable. Section 11.01 of the Family Code defines a suit affecting the parent-child relationship as one

brought under this subtitle in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought.

None of these matters is in controversy in the instant case. This is a suit in contract for damages. The custody, control, access and support of the child are not in issue and will not be affected by the outcome of this litigation. Venue is therefore controlled by Article 1995, and the order sustaining the plea of privilege is appealable by virtue of Tex.Rev.Civ.Stat.Ann. art. 2008.

The judgment of September 22, 1970 recites that it was rendered “after considering the evidence before the Court and the stipulations and agreements of the parties. . ” Following the signature of the court there appears the notation “Approved as to form and content” and the signatures of the appellant, the appellee, and their attorneys.

Tex.R.Civ.P. 11 provides that an enforceable agreement between parties to a lawsuit must be in writing, signed, and filed with the papers as part of the record. Additionally, a valid consent judgment must conform strictly to the stipulations and agreement of the parties. Farr v. McKinzie, 477 S.W.2d 672, 676 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref’d n. r. e.). We think the order of September 22, 1970 fulfills these requirements and appears, on its face, to be a consent judgment.

Judgments are to be interpreted according to their plain and unambiguous meaning. Magnolia Petroleum Co. v. Caswell, 1 S.W.2d 597, 599 (Tex.Com.App.1928, jdgmt. adopted). The judgment itself is the best evidence of its meaning. Vance v. Wilson, 382 S.W.2d 107 (Tex.Sup.1964). The judgment of September 22,1970 recites it was rendered on the basis of the stipulations and agreements of the parties and is signed not only by the attorneys, but also by the parties themselves. Absent any evidence to the contrary, these recitations show, as a matter of law, that the judgment was entered by agreement.

The judgment is a consent judgment and therefore contractual in nature and performable in Harris County. DeLee v. Allied Finance Company, 408 S.W.2d 245, 247 (Tex.Civ.App.-Dallas 1966, no writ). It was error for the trial court to sustain appellee’s plea of privilege. The judgment of the trial court is reversed, and judgment is here rendered that appellee’s plea of privilege is overruled.

Reversed and rendered.


author: PHILLIPS, Chief Justice.

text:
    In the Matter of D. L. C., Appellant, v. The STATE of Texas, Appellee.
    No. 12379.
    Court of Civil Appeals of Texas, Austin.
    Feb. 4, 1976.

      Jerry Secrest, Daniel, Tarver & Secrest, Temple, for appellant. ■
    Arthur C. Eads, County Atty., James T. Russell, Asst. County Atty., Bell County, for appellee.
   PHILLIPS, Chief Justice.

This is an . appeal from an order of the juvenile court of Bell County, Texas, wherein the court waived its original jurisdiction over appellant D.L.C., and transferred appellant to the district court of Bell County for criminal proceedings under the authority of the Tex.Family Code Ann. § 54.02 (1975). Appeal from this order was then perfected in this Court under provisions of Tex.Family Code Ann. § 56.01 (1975). We affirm the judgment of the trial court.

Appellant is a male, presently seventeen years old. He attends high school in Temple and lives with his parents, two sisters, and a brother. He has been charged with a felony, in that on or about May 16,1975, he allegedly abducted, raped, and attempted to murder a female high school student.

At the hearing on the question of transfer to the criminal district court, extensive evidence was presented by the victim, a police officer, several medical doctors who had examined the appellant, and two employees of the Texas Youth Council. Evidence was also presented by the court-designated psychologist who testified that appellant was intelligent, had a relatively high I.Q., but that he was functioning emotionally in a pre-adolescent state of development, that is, in the ten-to-twelve year-old age bracket. At the conclusion of the hearing, the juvenile court entered its order waiving its exclusive original jurisdiction and ordered appellant transferred to the district court for further proceedings.

Appellant is before us on four points of error, all of which we overrule. Appellant’s first point is that the trial court erred in failing to give specific reasons in its order for waiver of original exclusive jurisdiction as required by Tex.Family Code Ann. § 54.02(h) (1975).

The court’s order waiving jurisdiction is quite long and details the procedure the State followed from the time appellant was apprehended until the disposition of his ease. We find that the order is replete with reasons for the transfer in question. The court found that appellant is alleged to have committed three felonies, e. g., abduction, rape and attempted murder; that the seriousness of the offenses and the background of the child require criminal proceedings for the protection and welfare of the community. The order further states that in making the decision to transfer and waive jurisdiction, the court has considered, among other things, the following and found these as reasons for its decision: that the alleged offenses were against the person; that they were committed in an aggressive and pre-meditated manner; that enough evidence exists that a grand jury may be expected to return an indictment; that the appellant is sufficiently sophisticated and mature to warrant criminal prosecution for the offenses alleged; that there is little prospect, due to the age of the juvenile and limited continuing jurisdiction under the Texas Family Code, that the public would be adequately protected or that the juvenile would be reasonably expected to be rehabilitated by the use of the procedures, services and facilities currently available to the juvenile court, including those of the Texas Youth Council; and that treatment and rehabilitative services and facilities are more likely to be available as needed under the Code of Criminal Procedure than under the juvenile code for the duration of the period which may be required for the accused appellant.

Appellant insists that the order before us is inadequate under the holding of the court in In the Matter of J. R. G., 522 S.W.2d 579 (Tex.Civ.App.1975, writ ref. n. r. e.). We think not. In J. R. G. the order transferring the case to the district court was patently inadequate. This order entirely failed to make the determinations required by section 54.02(a)(3) of the Family Code that either the seriousness of the offense or the background of the child required criminal proceedings for the welfare of the community, and further failed to find that no adjudication hearing had been conducted concerning the alleged offenses as required by section 54.02(a)(2). Indeed, the only reason for the transfer that can be found in this order is “that it is contrary to the best interest of said child and to the public to retain jurisdiction.” This conclusion is clearly insufficient under either section (f) or section (h) of Tex.Family Code Ann. § 54.02.

Appellant’s point of error number two is that the court erred in waiving jurisdiction based on a finding that appellant had been previously charged with a similar offense because there is no evidence to sustain such a finding.

The trial court’s order waiving jurisdiction stated that “despite his otherwise good record and previous history, he has heretofore been charged with a similar offense, which when considered with other factors, requires criminal proceedings.” In fact, appellant had not been previously charged with a similar offense. The court was in error in making this finding. A criminal charge, in legal phraseology, is properly limited to such accusations as have taken shape in a prosecution. United States v. Patterson, 150 U.S. 65, 68, 14 S.Ct. 20, 37 L.Ed. 999 (1893). However, in our opinion it was not such an error as to amount to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex.R.Civ.P. 434. In spite of this misstatement, there was ample evidence before the court upon which it could have based its judgment.

Appellant’s point of error number three is that he was denied due process of law under the Texas Family Code on the issue of waiver of exclusive jurisdiction and discretionary transfer to criminal court because the State failed to properly notify appellant of the exact purpose of the hearing, as required by statute.

Appellant asserts that the subpoena commanding him to appear before the court to answer the petition filed therein had the following sentence added by typewriter: “This hearing which is set for the above date is for the purpose of the Court’s considering waiver of its exclusive original jurisdiction and transfer of the child to the appropriate criminal court.”

Appellant maintains that the above written statement as to the purpose of the hearing is insufficient as it does not apprise appellant of the fact that the transfer is discretionary with the court as is required by Art. 54.02(b) of the Family Code. In our judgment the notice requirement is adequate under the Code. The word “discretionary” following the phrase “for the purpose of considering” is, for all practical purposes, surplusage. For the court to “consider” the transfer contemplates the discretionary character of whatever decision it would eventually make. Appellant cites R. K. M. v. The State of Texas, 520 S.W.2d 878 (Tex.Civ.App.1975, no writ), where the court reversed the trial court for omitting the fact in the notice that the transfer was “to Criminal Court.” The correctness of that decision is apparent as the notice of the transfer proceeding wholly failed to apprise the juvenile as to the court of transference.

Appellant’s fourth, and last point, asserts that he was denied due process of law under the Family Code since he was never given proper notice of the ultimate facts and specific issues to be confronted during the hearing.

The State filed its original petition to transfer jurisdiction to criminal court on May 19,1975. Appellant was served a copy of this petition. Thus the requirements of Tex.Family Code Ann. §§ 54.02(b), 53.06, and 53.07 have been satisfied. As appellant contends, the State filed a Second Amended Original Petition on May 27, 1975. From our review of the record, we find that a summons with the notation “appear . to answer the petition filed therein, a copy of which is attached to this summons,” was served on appellant on May 30, 1975. Although the officer’s return does not indicate which petition was attached, we note that appellant does not allege that he failed to receive the State’s second amended petition, but merely that the transcript fails to show which petition was attached to the May 30th summons. In light of earlier service of a substantially similar petition upon the appellant, and appellant’s failure to allege that he did not in fact receive a copy of the State’s second amended petition, we find no merit in this point of error.

The judgment of the trial court is affirmed.

      . In compliance with Tex.Family Code Ann. § 56.01 the name of the alleged child has been deleted and initials substituted throughout this opinion.

      . The State alleges that appellant committed a felony violating Tex.Penal Code Ann. §§ 20.04, 19.02, and 21.02 (1974).