text:
    Margaret D. SHELTON, Appellant, v. Thomas Henry RAY and Nationwide Mutual Insurance Company, Appellee.
    No. 6738.
    Court of Civil Appeals of Texas, El Paso.
    July 12, 1978.

      Peticolas, Luscombe, Stephens & Windle, Colbert N. Coldwell, El Paso, for appellant.
    Grambling, Mounce, Sims, Galatzan & Harris, Sam Sparks, El Paso, for appellee.
   OPINION

OSBORN, Justice.

The Appellant, Margaret Shelton, sustained personal injuries in an automobile accident on March 25,1976, when the car in which she was a passenger was involved in a collision with a vehicle being driven by Thomas Henry Ray. Ray was apparently a permissive user of the vehicle and an omnibus insured under a policy issued by the Appellee, Nationwide Mutual Insurance Company. Suit was filed and service obtained on Ray on June 30, 1976. He did not notify the carrier of the suit and a default judgment was taken against him on August 3,1976. Appellant’s counsel waited thirty days and demanded payment of the judgment from Ray and the carrier. The carrier refused to pay because it was not notified of the suit as required by the policy provisions. Appellant filed this suit to collect the judgment from the carrier, or for a bill of review to set aside her default judgment against Ray so that the carrier could defend the suit in his behalf. The trial Court denied all relief. We affirm.

First, we consider the issue as to whether the carrier is obligated to pay the judgment against the omnibus insured. One of the “Conditions” of the policy is that “If claim is made or suit is brought against the Insured, he shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative.” Persons insured include both the named insured and permissive users. The evidence establishes and the Court found that Ray did not forward the suit papers or process served on him to Nationwide, and it had no notice of the suit until receiving the demand letter after the judgment became final.

In similar fact situations, the Courts of this State have consistently held that the carrier has a valid policy defense and is not obligated to pay a judgment against an insured who failed to comply with policy provisions regarding forwarding of suit papers. Members Mutual Insurance Company v. Cutaia, 476 S.W.2d 278 (Tex.1972); Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955); New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945).

In the opinion in Cutaia, the Court suggested that the State Board of Insurance or the Legislature provide that such a policy defense should only exist where prejudice resulted from the failure to forward suit papers. Four years later, the State Board of Insurance, on May 1,1976, provided for an Amendatory Endorsement to all general liability policies issued in Texas to provide:

“As respects bodily injury liability coverage and proper damage liability coverage, unless the company is prejudiced by the insured’s failure to comply with the requirement, any provision of this policy requiring the insured to give notice of action, occurrence or loss, or requiring the insured to forward demands, notices, summons or other legal process, shall not bar liability under this policy.”

The Appellant offered a copy of the endorsement and it was received into evidence without objection. The policy in this case was issued on 2-16-76, and the accident occurred on 3-25-76, and the endorsement was to be effective 5-1-76. There is no proof as to whether the Insurance Board intended for the endorsement to amend existing policies or to affect only policies issued after May 1, 1976. We conclude that this is immaterial because in the construction of an insurance policy, it is the law in effect at the date of its issuance that is controlling. Lee v. Universal Life Insurance Company, 420 S.W.2d 222 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.); 12 Appleman Ins.L. & P., Sec. 7041 (1943). In addition, there has been no proper proof made of the endorsement. Only a copy and cover letter were offered in evidence. It was not certified as provided for in Article 3722, Tex.Rev.Civ.Stat.Ann., and does not comply with Article 3731a, Sec. 4, Tex.Rev.Civ.Stat.Ann., so as to be admissible as an exception to the Hearsay Rule. Hearsay evidence, although admitted without objection, has no probative force and cannot support a judgment. Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376 (1959); Members Mutual Insurance Company v. Randolph, 477 S.W.2d 315 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref’d n. r. e.).

We conclude that Appellee, Nationwide, had a good policy defense, it is not liable for any part of the judgment entered against Ray, and Appellant’s Point of Error No. 2 is overruled.

Appellant’s first and third points contend that the trial Court erred in denying her bill of review. A bill of review is a procedure for a party against whom judgment has been entered to obtain equitable relief if certain requirements are met. These requirements and the basis for them are set forth in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), where the Court said:

“Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al. v. Ramos et al., Tex.Civ.App., 208 S.W.2d 111, er. ref. Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments ‘are always watched by courts of equity with extreme jealously, and the grounds on which interference will be allowed are narrow and restricted’; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. * * *”

That holding has been followed in more recent decisions. See Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964); Texas Machinery and Equipment Company v. Gordon Knox Oil and Exploration Company, 442 S.W.2d 315 (Tex.1969).

The procedure for a bill of review was not meant to give relief to a party who obtained the very judgment which had been sought, and Appellant does not meet the requirement set forth in the Hagedorn case. Having decided to let the judgment become final before notifying Nationwide that a judgment had been entered, the Appellant is in no position to complain of the trial Court’s failure to set that judgment aside. The question of whether any prejudice or harm would result, if a new trial was granted, is not an issue. Appellant’s Points of Error Nos. 1 and 3 are overruled.

The last point asserts that the trial Court erred in rendering a take nothing judgment against Appellant because Appel-lee waived its right to defend on the merits. It is argued that Nationwide had only to consent to the granting of a new trial and it could have avoided any harm from the default judgment. Further, that had this happened, the case could have begun anew without prejudice to Ray or his carrier. This argument presents several problems. First of all, Nationwide was not a party to the default judgment, so how can it consent to the setting aside of a judgment in a case in which it was not a party? In the second place, a judgment has already been entered against Ray for an amount in excess of his policy limits. If Nationwide is an active party to setting aside that judgment and the next judgment exceeds the first one, does not Ray have a cause of action against Nationwide for increasing his liability? Had Nationwide been advised of the judgment before it became final, it might have had a duty to agree to set the judgment aside if, in doing so, it could have reduced its insured’s liability to within his policy limits. But here Appellant intentionally decided to let the judgment become final before notifying the carrier, and never agreed to reduce her claim to an amount within the policy limits so as to eliminate any prejudice to the insured, and thus the insurer as well. We conclude that the Ap-pellee, Nationwide, has waived no rights in this case and equity should not undo that which a party has intentionally and conscientiously done for itself. Point of Error No. 4 is overruled.

There is one further reason why the Appellant cannot recover in this case. If the bill of review had been granted, the trial Court nevertheless found in its last finding of fact as follows:

“The Court does not find from a preponderance of the evidence that Thomas Henry Ray was negligent in the operation of his vehicle on March 25, 1976.”

There is no attack on that finding. Without an affirmative finding of negligence upon the part of Mr. Ray, the Appellant would not recover any judgment on a new trial.

The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Donald O. FERGUSON, Appellant, v. Joseph R. YORFINO, Sr., Appellee.
    No. 15950.
    Court of Civil Appeals of Texas, San Antonio.
    July 12, 1978.
    Rehearing Denied Sept. 13, 1978.

      W. Michael Murray, San Antonio, for appellant.
    Jack M. McGinnis, San Antonio, for ap-pellee.
   KLINGEMAN, Justice.

This appeal involves a suit on a written contract to construct a residence. Under date of June 29, 1973, Appellant, Donald O. Ferguson, and Appellee, Joseph R. Yorfino, Sr., signed an AIA “Standard Form of Agreement Between Owner and Contractor” providing that Yorfino was to construct a house for Ferguson on a costs-plus basis, under which Yorfino was to receive the costs of all labor and material, plus a fee of 15 per cent of the costs of such labor and material. [PX-1]. This instrument will sometimes be hereinafter referred to as the “AIA Contract.” Such agreement contains a provision that the maximum cost was not to exceed $65,000. Thereafter, a second writing dated September 11, 1973, was entered into between Ferguson and Yorfino [PX-3], which provided that such agreement supersedes, negates and in all things voids any prior written or oral agreement or contract which may have existed between the parties, and further provides that Ferguson will pay Yorfino his costs plus 15 per cent for all work, material, or other costs; and that there is no agreement between the parties as to maximum cost for construction of the residence.

Disagreements arose'between the parties and ultimately, Ferguson filed suit against Yorfino asserting that he had overpaid Yor-fino. Yorfino filed a general denial and a counterclaim in which he contended that Ferguson had failed to pay him certain amounts owing him, consisting of some supervisory costs and underpayment of the 15 per cent fee. Ferguson filed a supplemental pleading alleging that the second contract was signed under duress.

Trial was to a jury which found: (1) Plaintiff’s Exhibit No. 3 was not signed by Ferguson under duress; (2) Plaintiff’s Exhibit No. 1 was a sham; (3) Supervision was a cost agreed to between Ferguson and Yorfino to be paid by Ferguson; (4) The reasonable value of the supervision performed by Yorfino on the house in question was $12,400. The trial court entered judgment that Ferguson take nothing from Yor-fino and that Yorfino should take $9,910 from Ferguson, which amount is the difference between the costs of work, material, and other costs, including supervision costs, plus 15 per cent of such costs, and the amount paid by Ferguson; and that Yorfi-no is entitled to a lien to this extent.

Appellant by six points of error asserts: (1) the court erred in granting judgment for appellee on the basis of the writing of September 11, 1973, since appellee was under a pre-existing obligation under Plaintiff’s Exhibit No. 1 to render the same services and there was no consideration for the second contract; (2) the jury’s finding that Plaintiff’s Exhibit No. 3 was not signed by Ferguson under duress is against the great weight and preponderance of the evidence; (3) the court erred in granting judgment for appellee based on the jury’s finding that Plaintiff’s Exhibit No. 1 was a sham, in that the defense of sham is an affirmative defense which was not pleaded by appellee; (4) there is no evidence that Plaintiff’s Exhibit No. 1 was intended to be a sham in its entirety; (5) the court erred in granting judgment for Yorfino since there was no pleading or evidence that the AIA contract was entered into as a result of fraud, accident, or mistake, and therefore any evidence admitted to vary the terms of the AIA contract was in violation of the parol evidence rule and is of no legal effect; and (6) the court erred in overruling appellant’s motion for summary judgment since appellant’s original petition was filed pursuant to Rule 185 as a suit on a sworn account and Yorfino’s answer and counterclaim failed to comply with the requirements of such rule as to denial of the claim.

Appellant is an attorney who desired to construct a residence and appellee is a general contractor. Appellee testified that he signed the AIA contract after appellant told him that he needed it in connection with a loan he was making on the residence; that the AIA contract was just for the purpose of getting a loan; that he told appellant that the residence could not be constructed for $65,000; that he told appellant that he wanted an open-end contract to which appellant agreed and thereafter appellant prepared the second agreement [PX-3]; that appellee did not in any way dictate the terms; that after appellant typed the agreement he asked appellee if it was all right and appellant then signed it. He further testified that the second agreement voided the AIA contract, which contract was just for the purpose of getting a loan.

Appellant testified that he needed a contract to obtain a loan and that the bank required a signed contract in its file; that appellee desired a second agreement and told him that if he did not get it he would walk off the job; that although appellant prepared the second agreement, he was prepared to sign anything to get the job done; that a loan commitment letter was about to expire; that he owed several subcontractors; that he was over a barrel; that he signed the instrument under duress.

Appellee testified that he did not threaten to leave the job, but that he did tell appellant that the job could not be done for $65,000.

A number of appellant’s points of error stand or fall on whether the AIA contract was a sham, and we will first discuss appellant’s points of error in regard thereto. Point of Error No. 3 asserts that the defense of sham is an affirmative defense which was not pleaded by appellee and therefore was waived. Point of Error No. 4 asserts that there is no evidence to support the jury’s finding that such contract was a sham. Point of Error No. 5 asserts that there is no pleading or evidence that the AIA contract was entered into as a result of fraud, accident, or mistake, and therefore any evidence varying the terms thereof was in violation of the parol evidence rule and of no probative force.

Appellant’s point of error that the defense of sham was not properly pleaded and therefore was waived, is without merit. While the word “sham” is not specifically used in appellee’s pleadings, it is clear from an examination of the entire pleadings that appellee asserted that the AIA contract was never intended to be the agreement between the parties. Said pleadings are sufficient to support the finding of sham. Moreover, there was no element of surprise to appellant as is evidenced by a motion in limine filed by appellant in which he in effect recognizes a plea of sham by appel-lee.

We have heretofore set forth in some detail the material testimony. In summary, the following evidence supports the jury’s finding as to sham:

(a) Yorfino’s testimony that the reason he signed the AIA contract was because Ferguson told him he needed it for a loan;

(b) Yorfino’s testimony that the contract was only for the purpose of getting a loan;

(c) Testimony by Yorfino that he told Ferguson that the house could not be built for $65,000;

(d) Testimony by Yorfino that after Ferguson got the commitment from the bank he told Yorfino not to worry about the costs limitation provision;

(e) Testimony by Yorfino that he signed the AIA contract as a favor to Ferguson to help him get the interim financing;

(f)Plaintiff’s Exhibit No. 3 prepared and signed by Ferguson dated September 11, 1973, which states that such agreement between Yorfino and Ferguson supersedes, negates, and in all things voids any prior writing or oral agreement or contract which may have existed between the parties; that Ferguson will pay Yorfino his costs plus 15 per cent for all work, material, and other costs; and that there is no agreement between the parties as to maximum cost for the construction of the residence.

There is sufficient evidence to support the jury’s answer to Special Issue No. 2 [sham].

Appellant’s Point of Error No. 5 asserts that since there was no pleading or evidence that the AIA contract was induced by fraud, accident, or mistake, any evidence admitted to vary the terms thereof was admitted in violation of the parol evidence rule and is without probative force. We disagree.

The extrinsic evidence rule presupposes both the existence and the validity of written instruments. In other words, before the rule can be applied, a valid written instrument must have been made by the parties. Parol evidence is admissible to show that a written contract, by virtue of its invalidity, actually does not evidence any agreement at all between the parties. For example, it may be shown by parol that the minds of the parties had never met, or that an instrument, which purports on its face to be a contract, actually was not intended as such by the parties. 23 Tex.Jur.2d, Evidence § 353 (1961).

The correct rule is set forth in Baker v. Baker, 143 Tex. 191, 183 S.W.2d 724 (1944), as follows:

The rule excluding extrinsic evidence as to a written instrument has no place in any inquiry where the court has before it an instrument not then effective [citations omitted]. The rule that parol evidence is inadmissible to contradict or vary the terms of a written contract applies only to a written contract in force as a binding obligation. Parol evidence is always- competent to show the nonexistence of a contract or the conditions upon which it may become effective, [citations omitted].

The parol evidence under objection attacked the validity of the AIA contract, and was intended to show that it was nonexistent. Under such circumstances, there was no necessity to plead or prove fraud, accident, or mistake.

Appellant’s Points of Error Nos. 3, 4, and 5 are overruled.

Appellant’s first point of error asserts that the trial court erred in rendering judgment for Yorfino on the basis of the writing of September 11, 1973 [PX-3] since Yorfino was under a pre-existing obligation to render the same services by virtue of the AIA contract and there was no consideration to support the September 11, 1973, agreement. This point of error presupposes the validity of the AIA contract. The jury found that the AIA contract was a sham and there is sufficient evidence to support this finding as hereinbefore discussed. Since there was no pre-existing obligation, this point of error necessarily fails, and is overruled.

Appellant’s Point of Error No. 2 asserts that the jury’s finding that appellant’s signing of the September 11 agreement [PX-3] was not made under duress, is against the great weight and preponderance of the evidence [Special Issue No. 1]. The duress alleged and relied on by appellant was that Yorfino threatened to walk off the job if he did not get an open-end agreement. Yorfino testified that he did not threaten to walk off the job.

Our courts have consistently followed the rule that (1) there is no duress unless there is a threat to do some act which the party threatening has no legal right to do; (2) there must be some illegal exaction or some fraud or deception; (3) the restraint must be imminent and such as to destroy free agency without present means of protection. Ward v. Scarborough, 236 S.W. 434 (Tex.Com.App.1922, jdgmt adopted); Tower Contracting Co., Inc., of Tex. v. Burden Bros., Inc., 482 S.W.2d 330 (Tex.Civ.App. Dallas 1972, writ ref’d n.r.e.); Daugherty v. Gower, 403 S.W.2d 535 (Tex.Civ.App.—Amarillo 1966, no writ); Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551 (Tex.Civ.App.—Tyler 1965, no writ).

It is to be remembered that appellant is a lawyer and that he himself prepared and signed the instrument which he now asserts was made under duress. The testimony pertaining to the alleged duress involved is rather skimpy. It consists basically of appellant’s testimony that the reason he prepared the instrument of September 11, 1973, was because Yorfino was threatening to walk off the job, and that he was prepared to sign anything to get the job done. On the other hand, Yorfino testified positively that he did not threaten to walk off the job. The testimony was conflicting and the jury was the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Here, the jury apparently chose to believe Yorfino. Its holding is not against the great weight and preponderance of the evidence. Appellant’s Point of Error No. 2 is overruled.

Appellant’s sixth point of error asserts that his suit is a suit on a sworn account and that since Yorfino did not answer in accordance with the provisions of Rule 185, Tex.R.Civ.P., no evidence could be admitted and therefore the court erred in overruling appellant’s motion for summary judgment.

Ferguson’s suit was a suit to recover excess money allegedly paid to Yorfino for the construction of a house under a written contract. It is not a suit on a sworn account.

Our Supreme Court in Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958), said:

It has been held that a sworn account is defined according to its popular sense and applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing (which may include only one transaction between the parties). It does not mean transactions between the parties resting upon special contract [citations omitted].

See also McDaniel v. National Steam Laundry Company, 112 Tex. 54, 244 S.W. 135 (1922, opinion adopted); Couturie v. Roensch, 134 S.W. 413 (Tex.Civ.App.1911, writ dism’d).

A suit to recover money advanced under a contract is not a suit on a sworn account. The trial court properly overruled appellant’s motion for summary judgment. Appellant’s point of Error No. 6 is overruled.

All of appellant’s points of error have been considered and all are overruled. The judgment of the trial court is affirmed.

MURRAY, J., did not participate in the disposition of this appeal.

      . In any event, if there was any error, it was a harmless error. It appears from the record that under date of September 11, 1973, Ferguson and Yorfino entered into an agreement in writing for the construction of the residence involved which provided: (a) Ferguson will pay Yorfino his costs plus 15% for all work, material or other costs; (b) there is no agreement between the parties as to maximum costs for the construction of the residence; (c) this agreement supersedes, negates and in all ways voids any prior written or oral agreement or contract which may have existed between the parties. This instrument in writing is a sufficient basis to support the relief sought by Yor-fino, without resort to parol evidence.


author: MASSEY, Chief Justice.

text:
    Mary Lee GEESBREGHT, Appellant, v. John GEESBREGHT, Appellee.
    No. 17985.
    Court of Civil Appeals of Texas, Fort Worth.
    July 13, 1978.
    Rehearing Denied Sept. 14, 1978.

      Brown, Crowley, Simon & Peebles and Anne Gardner, Fort Worth, for appellant.
    Hooper, Chappell & Broiles and R. David Broiles, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

In this divorce case we affirm those portions of the trial judgment which granted a divorce and awarded custody of the parties’ minor children to the father; and at the same time' reverse and remand for another trial that portion of the trial court’s judgment decreeing division of the ^property involved.

The trial court’s judgment was rendered upon both the petition for divorce filed by John Geesbreght against his wife Mary Lee and upon the cross-petition for divorce by Mary Lee. Each will be hereinafter referred to by their first names. Declaration for relief by each party was upon the generally termed “no fault” ground of Tex. Family Code Ann. § 3.01, (Supp.1978) “Ins-upportability” of Chapter 3, “Dissolution of Marriage”.

ON THE JURISDICTION

Mary Lee desired that that part of the judgment which decrees the parties’ divorce be affirmed on appeal. Nevertheless, she has a point of error founded upon the trial court’s decision that it had jurisdiction of the case. Mary Lee left her husband’s domicile in Fort Worth, Texas, on January 20, 1976; on January 22, 1976, she filed a suit against him in the Circuit Court of Cook County, Illinois for separate maintenance and for custody of the parties’ children. A suit for separate maintenance is not valid by Texas law. On February 10, 1976 John filed his suit for divorce in the Tarrant County court from which there is this appeal. Both suits pended until August 17, 1976 when the Illinois court dismissed that of Mary Lee for want of prosecution. There was reinstatement of such case on September 14, 1976 upon the petition of Mary Lee. The Tarrant County suit continued to pend. Before the Illinois case was reinstated and on August 30, 1976 Mary Lee appeared before the Tarrant County court at a hearing in connection with her plea to be temporarily appointed managing conservator of her children. The circumstance presents a situation where Mary Lee has waived her right to complain of jurisdiction. The jurisdiction of the Tar-rant County court was secure as of the time of dismissal of Mary Lee’s suit in Illinois even though a question might have persisted (had she filed a plea to the jurisdiction— and none was filed either in compliance or non-compliance with the “due order of pleading” rules) had the dismissal not occurred and/or had there been no waiver during the period during which the Illinois case was a dismissed case. At no time was the Tarrant County court ever requested to take judicial notice of Illinois law, and such law was not proved.

What we have said in the preceding paragraph does not necessarily cover Mary Lee’s contention that the Tarrant County court did not have the requisite jurisdiction which authorized it to make an enforceable decree concerning custody of the children. By the circumstances we consider the question moot. Mary Lee appealed the judgment of the Tarrant County trial court to this appellate court while withholding custody of her children from John, contrary to the provisions of the trial court judgment. John presented such facts to this court and moved for dismissal of Mary Lee’s appeal. The proper order of an appellate court is to dismiss the appeal where an appellant is in obvious contempt of the judgment of the trial court from which the appeal has been taken. See Strange v. Strange, 464 S.W.2d 216 (Tex.Civ.App.—Fort Worth 1970). See also the opinion of the supreme court answering certified questions upon other aspects of the same case at 464 S.W.2d 364 (Tex.1971). The day before John’s motion to dismiss the appeal was scheduled to be heard Mary Lee caused or permitted the children to be delivered to John in Tarrant County, Texas, making proof to this court that such had been done. The motion to dismiss the appeal was withdrawn. We have continued to honor Mary Lee’s appeal.

Apart from the foregoing we nevertheless have considered the question of jurisdiction of the trial court, as of the time it rendered judgment and as of the time its jurisdiction passed (for necessary purposes) to this appellate court. We hold that the court below had jurisdiction of the children and authority to make the adjudication upon their custody.

Though the adjudication is as upon a case in rem in that it was upon the status of the children (so that there is the legal requisite that the trial court have jurisdiction not only of the husband and wife but also of their children for purposes of an enforceable custody decree) we hold that by the circumstances the domicile of the children was in Texas. Of course the trial court had jurisdiction for purposes of divorce.

The facts were not in dispute. Mary Lee took the children from Fort Worth on January 20, 1976 and removed them to Illinois.

John did not know, if it was the fact, that Mary Lee did not intend to return to Texas or did not intend to return the children to Texas. He did not consent to any change of the domicile of the children. He did not refuse to continue support. John provided support for the family at all times. Mary Lee did not work outside the home. Regardless of her unhappiness in her marital relationship there existed no danger or threat to her security or to that of the children which occasioned a change of domicile. Mary Lee did not return the children to Texas until after jurisdiction existed in this court by reason of her appeal. The children were not in Texas at time of the divorce and custody decree nor at time Mary Lee’s appeal was perfected.

Of course we are considering “domicile by operation of law”, i. e., analagous to what was formerly that of a wife arising upon her marriage. Of little value are the cases prior to the adoption of Texas’ Constitutional Equal Rights Amendment: Tex. Const, art. 1, § 3a, “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative”. The Amendment was adopted November 7, 1972. See Vol. 5, No. 2, Symposium, 1974, Tex.Tech.L.Rev., Sampson, “The Texas Equal Rights Amendment and the Family Code: Litigation Ahead”. To be kept in mind, however, are the old cases bearing upon the question. See 4 A.L.R.2d p. 7 Annotation: “Jurisdiction to award custody of child having legal domicile in another state”, and 9 A.L.R.2d p. 434, “Jurisdiction of court to award custody of child domiciled in state but physically outside it.”

We hold that Texas has effectively legislated, in the Texas Family Code, by its § 12.04, “Rights, Privileges, Duties, and Powers of Parent” where there is provision that, except as provided by judicial order or by an affidavit of relinquishment of parental rights executed under § 15.03, the parent of a child has, among other rights, privileges, duties, and powers, “the right to have physical possession of a child and to establish its legal domicile”. (The provisions of § 15.03, “Affidavit of Relinquishment of Parental Rights” are inapplicable to this case.) Prior to the separation of Mary Lee from John they had jointly established Tarrant County, Texas, as their legal domicile and also that of their children.

Tex. Family Code Ann. § 3.26 (Supp.1978) “Acquiring Jurisdiction over Nonresident Respondent” provides that when the petitioner in a suit for divorce is a resident or a domiciliary of this state at the time the suit is filed personal jurisdiction by the court shall exist over the respondent, although the respondent is not a resident or domiciliary of Texas, if this is the last state in which marital cohabitation between petitioner and respondent occurred and the suit is commenced within two years after the date on which cohabitation ended, — and that a court acquiring jurisdiction under the section also acquires jurisdiction in a suit affecting the parent-child relation if § 11.-051 of the Code is applicable.

Tex. Family Code Ann. § 11.051 (Supp. 1978) “Acquiring Jurisdiction Over Nonresident”, provides that in a suit affecting the parent-child relationship, the court may exercise personal jurisdiction over a person on whom service of citation is required, though a non-resident or domiciliary of this state, if the person on whom service is required has resided with the child in this state, and even where the section might otherwise be deemed inapplicable, if there is any basis consistent with the constitutions of this state or the United States for the exercise of the personal jurisdiction. Note the Law Review Commentaries listed under this section. § 11.051 is applicable in the situation posed by the case at bar.

On the “long-arm jurisdiction” of Tex. Family Code Ann. § 3.26 (Supp.1978) it has been held that a Texas court properly exercised its jurisdiction over a non-resident defendant where suit was filed within two years after the termination of a 2V2-month period of cohabitation of the parties in Texas. Scott v. Scott, 554 S.W.2d 274 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ hist.). The case involved custody of a child as well as divorce.

ON THE JURY TRIAL UPON CUSTODY

The matter of custody of the parties’ minor children was tried to a jury before the Honorable Gordon Gray, District Judge. Without objection two special issues were submitted along with a definition of the term Managing Conservator which in general “tracked” the language of Tex. Family Code Ann. § 14.02 (Supp.1978) “Rights, Privileges, Duties, and Powers of Possesso-ry Conservator”, save that there was not included in the definition the provision that the managing conservator has “the right to have physical possession of the child and to establish its legal domicile”. There was not an objection to the definition.

By ultimately returned answers to the two issues submitted the jury found for John to be awarded care and custody of the child (1) Andrea Marie Geesbreght would be to best serve her welfare and best interests; and (2) for him to be awarded care and custody of the child John Alexander Gees-breght would be to best serve that child’s welfare and best interests. Time when the special issues were answered came after additional issues were submitted, to be subsequently explained.

In connection with the above the jury was told, as a part of the instructions given, that “CHOICE Without Regard to Sex of Parent: You are instructed that the rights of the father and mother are equal with respect to the custody of their child, but that the welfare and best interests of the child is of controlling importance, and it will be your duty to find according as you may believe from a preponderance of all the evidence as to what would be for the welfare and best interest of the child, and you will answer this issue as you may find the facts to be.”

The state of the evidence was such that the jury knew that if there were findings that John Geesbreght should be awarded the care and custody of the children (or that such would serve their best interests) he would become the managing conservator. There was additional clarification in the arguments made to the jury. Not made clear to the jury was any right of a “posses-sory conservator”. What was clearly shown to the jury by the evidence was that if the father was granted custody of the children (made managing conservator) that, if the mother would move to Texas, he was willing that she should have “unlimited visitation rights”.

At 10:05 o’clock A.M., after the case was argued, the jury received the ease and began deliberations. At 2:50 o’clock P.M. the jury sent out word that it would like to see the judge. The judge sent back his note that the jury should put any requests in writing. About 5:00 o’clock P.M. a written notice was sent to the judge stating that the jury was deadlocked. The jury was brought into the courtroom. Upon inquiry of the judge, the foreman advised that the jury stood nine to three. The jury was directed to return to the jury room for further deliberations. At this point in time the foreman asked whether the jurors were compelled to reach a verdict. The judge answered “I wouldn’t say that you are compelled. What I said in the charge is true. If you don’t reach a verdict, the same jury will have the same problem and they won’t find it any easier than this jury. You are making progress if it’s nine to three. All right, you may retire to the jury room.” No objection was made by either party. After about 20 minutes the jury was excused to return the following court-day.

On the next day for proceedings in the business of the court deliberations were begun by the jury at 9:00 A.M. Soon after the jury sent out Note A-3 inquiring “Is conservatorship up for review periodically?”, and thereafter Note A-4 inquiring “What would be legal assurance that Mary Lee can, in fact, have unlimited visitation rights if John is awarded managing conservator”. In answer the court asked the jury to review the Charge as previously submitted. About 2:00 o’clock P.M. the jury sent in a note informing the judge that it was deadlocked. At about 2:30 P.M. the jury sent the judge a note which read: “As stated by law, define ‘Unlimited Visitation’

At this point the court prepared a supplemental charge, reading:

The definition of Possessory Conservator is as follows:
A Possessory conservator has the following rights, privileges, duties, and powers during the period of possession, subject to any limitations expressed in the decree:
(1) the duty of care, control, protection, and reasonable discipline of the child;
(2) the duty to provide the child with clothing, food, and shelter;
(3) the power to consent to medical and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
(4) any other right, privilege, duty or power of a managing conservator expressly granted in the decree awarding possession of the child.
SPECIAL ISSUE NO. 3.
What rights, privileges, duties, and powers do you find that the possessory conservator should have?
ANSWER: (Ultimately answered by the jury as: “Items 1, 2, 3, 4 as stated under definition of possessory conservator of page one of this document. In addition, the option to review as necessary to insure that the Possessory Conservator’s right to unlimited visitation is, in fact, adhered to.”)
SPECIAL ISSUE NO. 4.
What should be the visitation rights of the possessory conservator?
ANSWER: (Ultimately answered by the jury as: “Unlimited”.)

Before calling the jury from the jury room into the court room the judge asked if there were any objections to the court’s submission of the supplemental charge. Mr. Meyer, attorney for Mary Lee, replied “Yes, Your Honor, we object to it on the grounds that it constitutes a submission of an issue which has not been tried to the jury by the evidence. And, on the contrary, the Court instructed the jury at the beginning of the trial and during the submission of the instructions to the jury that the Court would decide all matters other than Managing Conservatorship including the rights, duties and responsibilities of the Possessory Conservator.”

The objection was overruled. The jury was brought back into court and, with other oral statements made to the jury by the court to which there was no objection, was told the supplemental charge would be submitted and it was submitted. There was no argument thereupon and there was no request therefor. The jury took the supplemental along with the original charge into the jury room. Rather promptly thereafter the jury returned its verdict as embraced by its answers to all special issues of both the original and supplemental charges.

No reversible error appears. The questions asked in the supplemental charge were in neither case such as required a finding upon an ultimate issue. The answers could amount to no more than recommendations, at least other than that as the possessory conservator Mary Lee should have all the rights of that office. This she did receive by the judgment. As already noticed, the jury was not misled in any failure to understand that the managing conservator should have the paramount custodial rights in and to the children, with visitation rights of any other and with rights of any possessory conservator subject thereto. It does appear that the failure of the original charge to show the jury what rights by law were vested in one who was a possessory conservator and, perhaps, an inability to express its desire to state an opinion that Mary Lee should have the most extensive of visitation rights upon the face of the instrument, caused difficulty in arriving at an agreement to make the finding that John should have the paramount rights of managing conservator. We see no error on trial which amounted to reversible error by Tex.R.Civ.P. 434, the Texas “harmless error” rule.

Submission of the immaterial Special Issue No. 3 was not subject to the only complaint made in the objection, which was that it presented new issues of fact which had not been tried. That being the only complaint, any additional complaints which might have been made were waived. By provision of Tex.R.Civ.P. 286, “Jury May Receive Further Instructions” there is authority for instructions to the jury, even after it has retired and begun deliberations. Even a new and different controlling issue in the case may be submitted under Tex.R. Civ.P. 286, though there would be reversible error if there was denial of the right to make additional jury argument upon an issue thus submitted in a supplemental charge. In the denial of such it has been held there would be probable harm, though not merely because there was a supplemental charge given by the court. Boler v. Coughran, 304 S.W.2d 290 (Tex.Civ.App.—San Antonio 1957, writ ref’d).

The answers to Special Issues Nos. 1 and 2 were not so contrary to the greater weight and preponderance of the whole of the evidence in the case as to be clearly erroneous. There was not reversible error by trial before the jury of the issues submitted.

SEVERABILITY OF JUDGMENT ON CHILD CUSTODY AND DIVORCE FROM JUDGMENT RELATIVE TO PROPERTY PARTITION.

7 St. Mary’s L.J. 1 (1975), “Try, Try, Again . . . ”, “A Proposal to Limit the Scope of New Trials in Texas” by Justice Jack Pope with Daniel J. Sheehan, Jr., contained recommendations which were adopted and made effective January 1, 1978, in Tex.R.Civ.P. 320, “(New Trials) Motion and Action of Court Thereon”. The Rule so adopted, and also — since January 1, 1976— provisions of Tex.R.Civ.P. 434, “If Judgment Reversed” authorizes new trial of the part of the controversy which is clearly separable without unfairness to the parties. We can now affirm the trial court’s judgment insofar as it grants the decree of divorce, and as it decrees the custodial rights to the parties’ children, though we might find ourselves obligated to remand for another trial the issues upon the division of property upon the grant of divorce. Young v. Hicks, 559 S.W.2d 343 (Tex.1977).

In the instant case, we have concluded that there should be a new trial on the issues appropriate to the determination of correct property division.

PARTITION OF PROPERTY UPON DIVORCE.

By agreement issues on property were tried by the court without a jury.

The date of the trial court’s judgment was August 30, 1977. In the event of retrial, issues relative to the property of the parties, as existent upon that date, would be those to be. retried. This is so because we have affirmed the part of the judgment which decrees divorce, meaning that from August 30, 1977 each party was divorced from the other though no proper division of their property was made at the time.

The occasion for what is considered to require remand of the case relative to property division lies in the court’s having treated the stock held by John Geesbreght in a Professional Corporation not to have been enhanced above its book value by any “good will” of the corporation developed during the period when he owned it. John not only held the stock but worked as an employee. In the approximate eighteen months of John’s interest there had been an improvement of corporate business to the extent that it had become unusually profitable.

John is a physician. Had his practice been that of an individual, then, in the event of divorce, the “good will” existent and which might have a value upon a sale of his practice or interest therein to another member of the same profession (with whom he might agree not to compete) would not be properly considered as part of the property to be taken into consideration in the property division to be made as part of the parties’ estate because there was a divorce. Nail v. Nail, 486 S.W.2d 761 (Tex.1972). The case appears in 52 A.L.R.3d p. 1338, followed, at p. 1344 by ANNOTATION: “Accountability for Good Will of Professional Practice in Actions Arising from Divorce or Separation”. In that case there was the implied holding that the trial court had erroneously considered as evidence that which was “no evidence” or “not legal evidence” because it was improperly considered. Of course, what resulted by the trial court, which was reversed, was an amount of judgment contrary to the greater weight and preponderance of the evidence. Posed was actually a “no evidence” question for the supreme court would not otherwise have had jurisdiction.

In Nail, supra at p. 764, the court took occasion to state: “It is to be understood that in resolving the question at hand we are not concerned with good will as an asset incident to the sale of a professional practice, or that may exist in a professional partnership or corporation apart from the person of an individual member . . . .”

Here we have that very question with which the supreme court stated itself not to be concerned, i. e., good will in Emergency Medicine upon which there was the necessity to find what portion, if any, apart from John’s person as an individual employee member, existed in that the corporation occasioning enhancement in the value of its corporate stock. We hold that there was “value” of such good will and that the trial court erred in the failure to take it into consideration in rendering the judgment from which the appeal was taken.

From the record we understand that in the field of medicine there has apparently arisen at many hospitals a need for the services of physicians at unusual hours in rendering emergency services, primarily at the emergency rooms. In ordinary medical practice the average doctor naturally prefers normal hours and the opportunity to know when he will probably be able to be with family or friends. Such a doctor, and no doubt there are many, is pleased to be relieved of the emergency duties performed at hospitals.

Some time ago, apparently in Dallas, Texas, a Dr. Lambert conceived the idea of making such emergency room services by physicians a specialized form of endeavor. Subsequently a Dr. Riggs became associated, and as applied to this particular work they called their organization the Emergency Health Services Associates, apparently a professional corporation. Dr. Riggs bought Dr. Lambert’s 50% ownership (of stock if it was a corporation) and himself became what we will call the Emergency Health Services. This has remained an entity, probably still doing business.

In August of 1974 John Geesbreght made a contract of employment with Emergency Health Services (Dr. Riggs) and for it performed the work of a physician in emergency room service at a Fort Worth hospital which will for convenience be called Harris. By subsequent arrangement, concluded in the spring of 1974, John became a partner of Dr. Riggs. When this partnership was formed Emergency Health Services ceased to supply the emergency services at Harris in Fort Worth. The partnership of Dr. Riggs and John, which they chose to call Emergency Medicine Consultants, took from Emergency Health Services the contract it had with Harris. Emergency Medicine Consultants began handling the Harris’ account as its own. This continued until November of 1975 when the partnership ceased as such, with the organization of the corporation Emergency Medicine Consultants, a Professional Corporation under the provisions of V.A.T.S. Title 32, “Corporation”, Art. 1528e, et seq. “Professional Corporation Act”. Dr. Riggs paid in $500.00 and John paid in $500.00, each receiving 500 shares of stock. They were the only stockholders. The business was that of supplying emergency room services of physicians at hospitals, but upon an expanded scale. The corporate business so begun proved successful; by time the divorce suit of John and Mary Lee Geesbreght was tried in July 1977 it was supplying hospital emergency room service by physicians in its employ at eight (8) different locations. There had been three (3) additional hospitals where the services had begun but at which they had been terminated to time of trial. One year’s gross receipts of Emergency Medicine Consultants for these services amounted to more than $1,000,000.00. The corporation will hereafter be referred to as Emergency Medicine.

At a time prior to the divorce trial Emergency Medicine (50% Dr. Riggs) had had occasion to pay Emergency Health Services Associates (100% by Dr. Riggs) the sum of $36,000.00 for contract negotiations by the latter in behalf of Emergency Medicine. As a result, Emergency Medicine acquired four (4) of the aforementioned eleven (11) hospital contracts. The Harris hospital contract was transferred to Emergency Medicine by agreement and without any payment and Harris’ contract evidently became that of Emergency Medicine. There John had begun to personally perform the emergency room hospital services in 1974, continued by him during the partnership period beginning in the spring of 1975, and still continuing when Emergency Medicine was incorporated in November of 1975. Little, if any, of the hospital emergency room services at locations other than Harris was ever personally performed by John, but all, or nearly all, the services at Harris were performed by him. The Harris contract with Emergency Medicine provides for cancellation at any time. Here would be the contract where any “good will” built up by and through satisfaction with John’s services would be, percentagewise, more personal to him and, to the extent it might be found personal, not proper to be taken into consideration in the division of property upon divorce.

However, over the entire field of operations by Emergency Medicine there are about ten full-time, and 50 to 100 part-time physicians with whom- Emergency Medicine has employment contracts to fulfill its obligations to furnish emergency services at the hospitals with which it has contracted. By the evidence each of these physicians receives 80% of what is received by the hospital from third persons for services he has rendered at the hospital, of the 100% which is received by Emergency Medicine. (Emergency Medicine is paid the 100% and Emergency Medicine pays 80% to each physician entitled thereto.)

There may be minor discrepancies in what we have stated and will state relative to the business operations, though if that be true it would make no difference in our ultimate conclusions and holdings.

Of the 20% resultant gross profit of Emergency Medicine after each employed physician is paid John receives 5% for his services as “director” as applied to payment for the corporate services at Harris, and/or as “regional director” of the services rendered at other locations. Emergency Medicine receives 5% as earnings in the form of “contract fee”. The remaining percentage to explain is thus made 10%. Of this 10% in receipts the majority is applied to pay for necessary services as by a secretary, bookkeeper, etc.; with something between 2% and 4% going into Emergency Medicine’s treasury as profit. This “profit”, whatever the monetary amount, would become the ultimate entitlement of the two stockholders — on a 50-50 basis, because 50% of the shares belonged to Dr. Riggs and 50% to John. We need not at this point concern ourselves with the earnings represented by the term “contract fee”.

“Good will” is sometimes difficult to define. In a personal service enterprise such as that of a professional person or firm, there is a difference in what it means as applied to “John Doe” and as applied to “The Doe Corporation” or “The Doe Company”. If “John Doe” builds up a reputation for service it is personal to him. If “The Doe Company” builds up a reputation for service there may be a change in personnel performing the service upon a sale of its business but the sale of such business naturally involves the right to continue in business as “The Doe Company”. The “good will” built up by the company would continue for a time and would last while the new management, performing the same personal services, would at least have the opportunity to justify confidence in such management while it attempted to retain the “good will” of customer clients of the former operators.

At least the opportunity to have time to try to preserve the “good will” already existent and to use it as an entrance into the identical field of operations in a personal service type of business would be present where the name of the business is a company name as distinguished from the name of an individual. Therein does it have value, plus the value of the opportunity to justify confidence in the new management by the customer/clients of the predecessor owner(s).

It is as applied to the foregoing that we consider Emergency Medicine to possess what we treat as “good will” as part of its worth and value under the circumstances of this case, and therefore an asset which would have value to some extent apart from John’s person as a professional practitioner.

It is clear that in the event John sold his stock to another physician then — save perhaps at Harris Hospital — there would be an opportunity to retain the contracts of Emergency Medicine if the services of its employed physicians in the various emergency rooms continued to be satisfactory.

On this it was shown that the Emergency Medicine contracts generally had either a 30 or 60 day cancellation provision “without cause”, and a 24 hour cancellation provision “with cause”. Also shown was that Dr. Riggs had a contract with John relative to sale or transfer of John’s stock. In the event of John’s death, Dr. Riggs is by this contract entitled to all of John’s stock at the price of $50,000.00, and in the event John desires to sell his stock before that time, Dr. Riggs has the privilege of purchasing it at a price of $50,000.00.

We think it obvious that to take the figure of $16,000.00, which was proved to have been the “book value” of John’s 500 shares of stock in Emergency Medicine Consultants, and use it as the “actual value” of the stock as its worth to be taken into consideration by the court in the division of the estate upon divorce was, under the circumstances of the case, reversible error. We hold that it resulted in gross inadequacy in the award on property division as applied to Mary Lee; that it also resulted in an award to her which was so contrary to the greater weight and preponderance of the whole of the evidence on trial as to be clearly erroneous. Further, we hold that the court erred in considering as “no evidence” that which was evidence in that under the circumstances of the case. The value of the stock in Emergency Medicine Consultants was enhanced by some “good will” which was existent as applied to that professional corporation apart from the person of John Geesbreght.

It is error for a court not to take into consideration all relevant property interests in reaching equitable division of the property on divorce. Gillis v. Gillis, 435 S.W.2d 171 (Tex.Civ.App.—Fort Worth, 1968, writ dism’d); Matter of Marriage of Butler, 543 S.W.2d 147 (Tex.Civ.App.—Texarkana, 1976, writ dism’d); Matter of Marriage of Long, 542 S.W.2d 712 (Tex.Civ.App.—Texarkana, 1976, no writ hist.).

In this case, for reasons stated, we hold that the trial court erred in failure to take into consideration all relevant property interests.

We have discussed the important matters necessary to disposition of the appeal. We have considered all points of error presented and they are overruled except for those whereby our action, below stated, has been determined.

Judgment is affirmed insofar as it granted the divorce and determined the custodial rights of the parties’ children. Judgment is reversed and remanded for another trial on the matter of the appropriate property division.

Cost of the appeal are taxed 50% to John Geesbreght and 50% to Mary Lee Gees-breght.


author: MURRAY, Justice.

text:
    Alberto SANTOS, Appellant-Cross Appellee, v. Jose M. GUERRA, Appellee-Cross Appellant.
    No. 16036.
    Court of Civil Appeals of Texas, San Antonio.
    July 19, 1978.
    Rehearing Denied Sept. 13, 1978.
    Richard G. Morales, Sr., Asst. Webb County Atty., Laredo, for appellant-cross appellee.
    John Buckley, Austin, for appellee-cross appellant.
   OPINION

MURRAY, Justice.

This is a case arising under the Texas Open Meeting Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17 (1967), and concerns the validity of the action of the appellant, Webb County Commissioners Court, in discharging appellee, Jose M. Guerra, Superintendent of the Road and Bridge Department of Webb County. This appeal is from the judgment entered on the jury verdict in favor of appellee for $16,000 in the district court. The jury found: (1) that there was a failure to post notice of the commissioners court meeting as required by the Texas Open Meeting Act; (2) that appellee did not have sufficient notice of the Webb County Commissioners Court meeting to enable him to secure attorneys’ advice and otherwise protect whatever rights he considered were in danger of being violated; (3) that during the executive session of this meeting, the members of the commissioners court discussed the evaluation of duties or job performance of appellee; (4) that appellee should be awarded $16,000 for the loss of earning capacity from the date of the termination to date of trial.

Appellant’s first point of error is that the trial court erred in overruling his motion for instructed verdict at the close of the evidence because there was no evidence of a violation of the Texas Open Meeting Act that would justify the invalidation of the action of the commissioners court in terminating the employment of appellee. We agree. In determining whether the appellant was entitled to an instructed verdict in this case, we must view the evidence in the light most favorable to the appellee and we must indulge in every inference which may properly be drawn from the evidence and a peremptory instruction is warranted only when the evidence is such that no other verdict can be rendered and the winning party is entitled, as a matter of law, to a judgment. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Lee v. Chumley Lumber Company, 465 S.W.2d 414 (Tex.1971). Viewing the evidence in the light most favorable to appellee’s case, it is apparent that the commissioners court of Webb County has substantially complied with the Texas Open Meeting Law and that invalidation of the action of the commissioners court is not justified.

Appellee testified that he was hired on April 1,1975, by the commissioners court of Webb County as superintendent of the Roads and Bridge Department, and thereafter had some problems with individual members of the commissioners court on how the department should be operated; that on November 21, 1975, he received a telephone call and was told that commissioners court wanted to fire him at the Monday meeting, November 24, 1975. On the afternoon of November 21, 1975, a meeting of the employees of the Road and Bridge Department was held in which appellee and some 60 employees were present. Appellee testified that he discussed the matter with his employees and that some of the men told him they would be glad to go to the commissioners court with appellee; that some of the men started getting petitions and signing them.

The record reflects the following testimony given by appellee concerning the telephone call he received on November 21:

A. Well, see, about one o’clock, the phone rang . . . And they told me — This guy said, ‘they are going to fire you. Commissioner de la Garza is going to fire you Monday.’
* * * * * *
Q. Did you believe it?
A. I took it for granted that they knew.
* * * * * *
Q. So would that not show, Mr. Guerra, that the notice that you had received, from your own testimony, at one or one-thirty in the afternoon, on Friday, was sufficiently specific?
A. (Witness nodded affirmatively.)
Q. Is that a yes answer, Mr. Guerra?
A. Well, like I told you, it was a rumor. I didn’t know for a fact. The facts didn’t come about until Monday at nine-thirty or ten o’clock.

The record shows that the notice was posted on November 21, 1975. Item No. XI stated, “Discuss Road and Bridge Department personnel matters (executive session if needed).” Mr. Mike Volpe, County Clerk of Webb County, testified that the general practice in Webb County was that all notices were prepared by the county judge’s office and given to the deputy county clerk assigned to the commissioners court; that the deputy county clerk would then post the notice Friday morning at the bulletin board at the courthouse which was open to the public seven days of the week. The deputy county clerk assigned to the commissioners court was Mr. George Zapata and during the trial of this case Mr. Zapata was in the county clerk’s office and was not called as a witness by appellee or appellant.

When Mr. Volpe was asked if he knew that the notice had been posted on Friday, November 21, he stated:

A. As I testified yesterday, I have full confidence in my employees. The person who signed that particular notice has been in the County Clerk’s Office for close to forty years. He knows exactly what he is supposed to do. And I feel confident, and I feel sure that the minute that notice was presented to him, he posted it.

It appears the commissioners court meeting on November 24, 1975, was well attended by citizens of Webb County consisting of both friend and foe of appellee. At the beginning of the meeting, appellee made a request that any evaluation or discussion of him be held in open public meeting as provided in Art. 6252-17, § 2(g) (Supp.1978). This section provides as follows:

Nothing in this act shall be construed to require governmental bodies to hold meetings open to the public in cases involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee or to hear complaints or charges against such officer or employee, unless such officer or employee requests a public hearing.

When Item No. XI on the agenda for the commissioners court came up for discussion, it was suggested by one of the commissioners that they retire to executive session for the purpose of determining who was going to be discussed in the Road and Bridge Department. After a lengthy discussion, it was determined that it would only be fair to the employees concerned to determine in executive session who was going to be discussed. The court then retired into executive session for between eight and ten minutes and returned to open court.

The interrogatory of Commissioner de la Garza was introduced wherein he testified that while in executive session, the commissioners did not discuss terminating appel-lee’s job; that they did discuss the history of his job performance; that de la Garza brought out the fact that he received information that appellee had been using county equipment on private property and was not following the orders of the commissioners court and that improper repairs were made on the Pinta Mangana Road. In an answer to a question by appellee’s attorney, Commissioner de la Garza denied that discipline of the appellee or anything like that was mentioned in the closed session.

Commissioner Angel R. Laurel gave similar testimony to Commissioner de la Garza and then stated, “Those facts were merely stated by Mr. de la Garza and once they were heard by the other commissioners, the court then proceeded to come into open court.”

The open meeting concerning appellee lasted for at least two and one-half hours during which time the petition of the employees of the Road and Bridge Department in favor of appellee was introduced and numerous witnesses were called and statements were made for and against appellee. Appellee participated in the hearing in open court and never requested a postponement for the purpose of obtaining an attorney. Appellee testified that when everyone was through talking, including appellee, Commissioner de la Garza made a motion that appellee’s employment be terminated, which motion was carried three to one.

In the case of Toyah Independent School District v. Pecos-Barstow Independent School District, 466 S.W.2d 377 (Tex.Civ.App.—San Antonio 1971, no writ), Chief Justice Cadena of this Court, stated the rule to be that: “The effect of holding a statute to be mandatory, as appellees concede our Open Meeting Law to be, is to require at least substantial compliance with its provisions in order to uphold proceedings to which the statute is applicable.” In Toyah, supra, the Board of School Trustees of Reeves County excluded the public from a meeting in which it deliberated and voted to annex Toyah Independent School District to Pecos-Barstow Independent School District. This action by the Reeves Board was a flagrant violation of our Open Meeting Law.

In the present case, the presumption is that the deputy county clerk performed his duties correctly in posting the notice as required by our Open Meeting Law. Fausett v. King, 470 S.W.2d 770 (Tex.Civ.App.—El Paso 1971, no writ); 47 Tex.Jur.2d Public Officers, § 118 (1963). The notice of the November 24, meeting concerning personnel matters of the Road and Bridge Department was not as detailed as it could have been, but under all the circumstances present in this case it would alert a reader to the fact that some action would be taken concerning appellee’s job performance. In fact, appellee was alerted and participated in the hearing. The legislative purpose of the Open Meeting Act was that “of assuring that the public has the opportunity to be informed concerning the transactions of public business.” Tex.Laws 1967, ch. 271, § 7, at 597. “Substantial compliance” means compliance with the essential requirements, whether of a contract or of a statute. Wentworth v. Medellin, 529 S.W.2d 125 (Tex.Civ.App.—San Antonio 1975, no writ). We hold that under the facts of this case substantial compliance with our Open Meeting Law was established as a matter of law.

The judgment of the trial court is reversed and judgment rendered that plaintiff take nothing.


text:
    Pat VOIGT and William M. Porter, Appellants, v. Melrose Haby UNDERWOOD, Appellee.
    No. 15931.
    Court of Civil Appeals of Texas, San Antonio.
    July 19, 1978.
    Rehearing Denied Sept. 20, 1978.
    William M. Porter, San Antonio, for appellant.
    Fred J. Manning, San Antonio, for appel-lee.
   OPINION

MURRAY, Justice.

This is a suit to set aside a deed from Clarence A. Haby, deceased, to Pat Voigt. The plaintiff is Melrose Haby Underwood, daughter of Clarence A. Haby, deceased, and the defendants are Pat Voigt and William M. Porter. The trial was before a jury and the one issue submitted to the jury was as follows:

Do you find from a preponderance of the evidence that on November 16, 1972, that Clarence A. Haby did or did not have sufficient mental capacity to understand the nature and effect of his act in executing the deed in question to Pat Voigt?
Answer ‘Clarence A. Haby did have sufficient mental capacity,’ or ‘Clarence A. Haby did not have sufficient mental capacity.’

The jury answered that “Clarence A. Haby did not have sufficient mental capacity.”

The defendants contend that the special issue as worded improperly placed the burden of proof. We agree.

It appears from the record that the question as originally submitted to the attorneys for objection properly placed the burden of proof on the plaintiff and asked the jury to answer the question “He did have” or “He did not have.” After the charge was read to the jury, it was decided to change the form of the answer but not the question. The court reporter understood that both question and answer were to be changed which was done without giving either counsel a chance to object. This matter is set up by affidavit of the court reporter and approved by the trial court as follows:

AFFIDAVIT
Before me, the undersigned authority, on this day personally appeared GENE L. STEELE, Official Court Reporter for the 38th Judicial District Court of Medina County, Texas, who, after being duly sworn, would state upon his oath, the following:
On the 17th day of May, 1977, at a trial before a jury, in the above entitled and numbered cause, the following special issue was read to the jury, to-wit:
Do you find from a preponderance of the evidence that on November 16, 1972, that Clarence A. Haby did not have sufficient mental capacity to understand the nature and effect of his act in executing the deed in question to Pat Voigt?
Answer: ‘He did’ or ‘He did not have.’
We the Jury, answer: _
Thereafter, following the reading of the special issue to the jury, it was decided by the Court and the attorneys that the answer to said special issue should be changed in order to clarify their answer as follows:
‘Clarence A. Haby did have sufficient mental capacity’ or ‘Clarence A. Haby did not have sufficient mental capacity-’
I changed the special issue question to read as follows:
Do you find from a preponderance of the evidence that on November 16, 1972, that Clarence A. Haby did or did not have sufficient mental capacity to understand the nature and effect of his act in executing the deed in question to Pat Voigt?
Answer: ‘Clarence A. Haby did have sufficient mental capacity’ or ‘Clarence A. Haby did not have sufficient mental capacity.’
The jury answered that ‘Clarence A. Haby did not have sufficient mental capacity.’
I understood that the question and answer was to be reworded. I later found out that the Court and the attorneys only agreed to change the answer and not the context of the special issue. This change was made during the course of the argument to the jury and the attorneys did not have an opportunity to correct same or make any objections thereto.
Sworn to and subscribed this 26th day of July, 1977.
/s/ Gene L. Steele
Gene L. Steele
Given under my hand and seal of office this 26 day of July. 1977.
/s/ Francis J. Bohl
District Clerk, Medina County, Texas
COURT’S APPROVAL
I, JACK WOODLEY, Presiding Judge of the 38th Judicial District Court of Hondo County, Texas, agree that the above and foregoing matter occurred in accordance with the foregoing affidavit and same is true and correct. This certificate is made in order that same may be incorporated into the record in said cause.
SIGNED and ENTERED this 26 day of July. 1977.
/s/ Jack Woodley
Judge Presiding

The issue as submitted appears to give the jury a choice and destroys the instruction in the charge to the effect that the burden of proof is on the plaintiff. The disjunctive submission permitted by Rule 277, Tex.R.Civ.P. 277 (1978), is not applicable to this case. Parker v. Keyser, 540 S.W.2d 827 (Tex.Civ.App.—Corpus Christi 1976, no writ); G. HODGES, SPECIAL ISSUE SUBMISSION IN TEXAS 94 (1959). We think that the failure to place the burden in this issue is properly illustrated by Professor Hodges when he says at page 94:

If the inconsistent fact is in issue only as inferential rebuttal of an element of plaintiff’s primary ground of recovery, and not in addition as an element of plaintiff’s alternative ground of recovery, the placing of the burden of persuasion within the issue, in the usual form, either places the burden of proof improperly or fails to place it on either party. Thus, if plaintiff seeks recovery only on the ground that an employment contract provides for a commission on sales, and the defendant asserts that the contract was for a salary which has been paid, the following issue would be erroneous: ‘Do you find from a preponderance of the evidence that the agreement was for a commission or that it was for a salary?’ It would place the burden equally for finding either answer, and thus either fail to place the burden or it would erroneously place it on the defendant to secure a finding that the agreement was for a salary.

This point was properly raised by defendant in his motion for new trial and, therefore, under the unusual circumstances of this case, we hold that the error is preserved for review by this Court.

The judgment of the trial court is reversed and remanded.


text:
    Clayton E. MOREN, Appellant, v. Alfred D. PRUSKE, Appellee.
    No. 15957.
    Court of Civil Appeals of Texas, San Antonio.
    July 31, 1978.
    Rehearing Denied Sept. 20, 1978.

      Thomas Goggan, Goggan & Cain, Austin, Kenneth Leeds, San Antonio, for appellant.
    Richard E. Langlois, R. Emmett Cater, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

Defendant below appeals from a judgment rendered after a trial before a jury, and we will designate the parties as they appeared in the trial court. Plaintiff, as lessor, and defendant, as lessee, entered into a written lease agreement concerning certain warehouse space in Bexar County, Texas. The lease, which was for an initial two-year period, was executed on July 6, 1971, and defendant exercised his additional two-year option, and finally surrendered the premises on or about June 30, 1975. Plaintiff alleged that defendant, at the expiration of the lease term, delivered the premises to plaintiff in a damaged condition and that the reasonable cost of repair of such premises was the sum of $26,430. Plaintiff seeks additional damages for lost rentals due to the condition of the premises. The defendant denied that the plaintiff had suffered any damages and, further, that any issue in this suit has or should have been litigated in a prior suit between the same parties.

At the close of the evidence, the court submitted, among others, the following questions, and the jury made the following answers:

ISSUE NO. 2
Do you find from a preponderance of the evidence that plaintiff suffered financial loss as a result of the condition of the premises when they were delivered?
Answer “We do” or “We do not”.
Answer: We do
ISSUE NO. 3
What amount of financial loss did Plaintiff, Pruske, suffer as a result thereof?
Answer in dollars and cents, if any.
Answer: $17.500.00
ISSUE NO. 4
Do you find from a preponderance of the evidence that such condition rendered the premises unsuitable for occupancy by other prospective tenants immediately after Defendant Moren vacated them?
Answer “We do” or “We do not”.
Answer: We do
ISSUE NO. 5
Do you find from a preponderance of the evidence that Plaintiff, Alfred D. Pruske, used due diligence in attempting to lease the premises immediately after Defendant, Clayton E. Moren, vacated them?
Answer “We do” or “We do not”.
Answer: We do
ISSUE NO. 6
What amount of financial loss did Plaintiff Pruske suffer as a result of being unable to lease the premises immediately after they were vacated by Defendant, Clayton E. Moren?
Answer in dollars and cents, if any.
Answer: $2400.00

This case was tried to a jury in May of 1977 and therefore a motion for new trial was a prerequisite to appeal. Tex.R.Civ.P. 324 (1977). Proper assignments of error in the motion for new trial are necessary conditions to the right to complain on appeal. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Sumners Road Boring, Inc. v. Thompson, 393 S.W.2d 690 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.).

We have carefully examined defendant’s amended motion for new trial and defendant’s ten points of error as set out in his brief and find that only Point of Error No. IV is supported by a point in his amended motion for new trial. Defendant’s Point of Error No. IV states:

THE TRIAL COURT ERRED IN ENTERING JUDGMENT UPON SPECIAL ISSUE NO. THREE AND THE FINDING THEREON AND IN OVERRULING THE AMENDED MOTION FOR NEW TRIAL, BECAUSE THERE IS INSUFFICIENT EVIDENCE TO SUPPORT SUCH FINDING, AND SUCH FINDING IS SO CONTRARY TO THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE AS TO BE MANIFESTLY UNJUST.

Paragraph II. of defendant’s Amended Motion for New Trial states:

The Court erred in failing to set aside the jury demand for damages as set forth and provided in Vernon’s Annotated Rules of Civil Procedure, Rule 328, such award being grossly and manifestly excessive when compared to the weight and sufficiency of evidence. That such award was insufficiently supported by the finding and was so against the overwhelming weight and preponderance of evidence as to be manifestly wrong.

We overrule this point of error. The testimony in this case lasted over a period of seven days. Most of this testimony pertained to the nature and extent of the damages, the type of repairs required, the estimated costs of repairs, and the actual cost of repairs. We agree with defendant’s counsel in this statement:

The record in this case consists of seven separate bound volumes of testimony and 159 exhibits. The great bulk of the record is concerned, in excruciating detail, with the nature and extent of claimed damages and repairs thereto.

The proper measure of damages where the injury to realty is repairable is the reasonable cost of repairs necessary to restore the property to its prior condition. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127 (1950); Weaver Construction Co. v. Rapier, 448 S.W.2d 702 (Tex.Civ.App.—Dallas 1969, no writ). It is defendant’s position that the word “reasonable” must appear in the testimony of an expert witness and it is apparent from the record that this word was not used. We agree with plaintiff that reasonableness can be inferred from the evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Ice Service Company v. Scruggs, 284 S.W.2d 185 (Tex.Civ.App.—Fort Worth 1955, writ ref’d n. r. e.); 23 Tex.Jur.2d Evidence § 65 (1961). In Lynch, the Supreme Court said, at page 276:

The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301, therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.

Mr. Victor Oehler, called as a witness by plaintiff, testified that he was in the building and construction business for 16 years and was a tenant in the same building involved in this suit and had inspected damage to the building and submitted a bid in the amount of $26,430 to the plaintiff and that said amount was strictly for the repair that was required to put the building back in shape as it was. He further testified that he was familiar with the price of the materials and with the price of labor in the San Antonio area, and that he now felt that his bid was actually too low for him to cover his costs to make the repairs.

Mr. E. W. Carlson was called as a witness by plaintiff and testified that he was an estimator for a construction company and had 30 years of experience; that he had submitted a proposal in the sum of $23,410 and that his estimate was submitted as a complete bid in the expectation that the company he worked for would have the opportunity to make repairs to plaintiff’s warehouse. When this witness was asked if estimates of this type varied from estimator to estimator, he gave the following testimony:

A Well, we all see things differently, yes.
Q In your opinion, how much variation would you expect in a proposal of this character?
A Well, any honest bidding there can be a certain percentage variance of your bids. That’s how you come up low on them. You see you can do it more efficiently than the other person. And, as a rule, there shouldn’t be more than a maximum of 5 per cent difference, would be logical.

We hold that under the evidence in this case the jury could infer the reasonableness of the cost of repair and that the evidence is sufficient to support the answer to Issue No. 3.

The judgment of the trial court is affirmed.


author: PRESLAR, Chief Justice.

text:
    BORDEN, INC., et al., Appellants, v. Robert A. WALLACE, Appellee.
    No. 6726.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 2, 1978.
    Rehearing Denied Sept. 6, 1978.

      Baker & Botts, Hugh Rice Kelly, Thomas R. Phillips, Houston, Clark, Thornton & Summers, Robert B. Thornton, San Antonio, for appellants.
    Daniel R. Rutherford, San Antonio, W. Page Keeton, Austin, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a suit for slander whereby Appel-lee recovered $500,000.00 in actual damages and $500,000.00 in exemplary damages by a jury verdict. We reverse and render.

Appellee was a wholesale route salesman for Appellant, Borden, Inc., making sales and deliveries to schools and retailers on a commission basis. On May 10, 1974, an employee of Wuest, a retail store customer of Borden, reported to his superiors that he saw Appellee stealing dairy products. Wuest’s Vice President, Robert Wuest, transmitted this information to James Wolf, Borden’s sales manager, and requested that Appellee not make any more deliveries to any of Wuest’s 15 stores. Borden has a company rule that dismissal is automatic for (1) drinking on the job, and (2) dishonesty, and it is company policy to give polygraph tests to employees prior to their employment and when they are suspected of dishonesty. At Wolf’s request, the Defendant Andrews, Borden’s personnel director, arranged for Appellee to take a polygraph test and, following such test, Ap-pellee was discharged. This suit was then filed against Defendants Robert Wuest and Wuest, Inc., Borden, Inc., and its employee J. C. Andrews. At the conclusion of the evidence, a directed verdict was granted in favor of Wuest, Inc. and Robert Wuest on the basis that there was no showing of malice. The jury verdict was against J. C. Andrews and Borden, Inc., jointly and severally.

The judgment is based on findings of two defamatory statements. The jury found that the Defendant Borden, through its agent, Defendant Andrews, communicated two slanderous remarks; one to Wayne Knight, a Borden employee, to the effect that Appellee had been fired because of dishonest acts amounting to theft, and the other was to Ron Morrell, a polygraph operator, that Appellee Wallace was suspected of committing dishonest acts amounting to theft at the Wuest Oak Park Store.

We have concluded that Andrews’ communications to both Knight and Morrell were conditionally privileged, and that there is no evidence that such statements were made with malice. The jury answers to Special Issues Nos. 5 and 10 found that both statements were made with malice. In submitting the issues on malice, the trial Court instructed the jury as follows:

“You are instructed that malice means ill-will and bad or evil motive or such gross indifference to the rights of another as amounts to a wilful or wanton act and done intentionally and without just cause or excuse.”

Appellants urge that this instruction is essentially that of common law malice, and that is no longer the conduct necessary in Texas to overcome a qualified privilege under the ruling of Dunn and Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896 (Tex.1970). We do not reach that question as we are of the opinion that there is no evidence to support the jury’s findings under the instruction as given. Proof of malice is necessary for Appellee’s recovery if the statements of Andrews were made under a qualified or conditional privilege. As the Supreme Court said in Dunn and Bradstreet, Inc. v. O’Neil, supra:

“ * * * ‘Such privilege is termed conditional or qualified because a person availing himself of it must use it in a lawful manner and for a lawful purpose. The effect of the privilege is to justify the communication when it is made without actual malice.’ Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App.1959) writ ref’d, N.R.E. * * * ”

We will not dwell at length on the question of privilege because counsel for Appellee in oral argument stated that he is not really contending that there is no conditional privilege in this case. We do note that the Court submitted the question of privilege to the jury, and we are of the opinion that whether a communication is privileged is a question of law for the Court. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942); Fitzjarrald v. Panhandle Pub. Co., 149 Tex. 87, 228 S.W.2d 499 (1950). We conclude that the Defendant’s conditional privilege was shown to exist as to each of the two communications.

We sustain Appellants’ Points of Error Nos. 7 and 10 that there was no evidence that Andrews’ statement to Knight was made with malice, and that there was no evidence that Andrews’ statement to Morrell was made with malice.

In deciding “no evidence” points such as these, an appellate Court must consider only the evidence and the inferences tending to support the findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). As to the existence of malice where there is a conditional or qualified privilege, Judge Peden, in Houston Belt & Terminal Railway Company v. Wherry, 548 S.W.2d 743 at 754 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref d n. r. e.), quotes at length from Texas Jurisprudence as follows:

“ ‘Although the existence of actual or express malice is not presumed as a matter of law and must be proved, it need not be proved by direct or extrinsic evidence; its existence is sufficiently shown by evidence of facts and circumstances from which it is reasonably inferable. It may be inferred from the relation of the parties, the circumstances attending the publication, the language used, and from the words or acts of the defendants before, at, or after the time of the communication; but there must be evidence from which the jury can infer malice existing at the time of publication and actuating it. Malice is not implied or presumed from the mere fact of the publication, nor may it be inferred alone from the character or vehemence of the language used, nor found from the falsity of the statement alone.’ 36 Tex.Jur.2d 475, Libel and Slander See. 149.”

Was Andrews actuated by malice or evil motive to tell Knight that Appellee Wallace had been fired from Borden, and that his firing was because he had committed dishonest acts amounting to theft at the. Wuest Oak Park Store? The circumstances of the statement being made are these. Knight, who was a very close friend and “buddy” of Wallace, went to see Andrews, the personnel director of Borden, and inquired as to Wallace’s discharge. Thus, the statement of Andrews was not volunteered but was given after inquiry by a fellow employee who testified that he did so because of his concern for what had happened to his friend Wallace, and to be sure that he was treated fairly. He testified that Andrews was his friend, and that he, Andrews, “looked after and took pretty good care of the drivers.” Wallace also testified to being a good friend of Andrews, that he had known him since elementary school days, and that he talked to him nearly everyday. Appellee urges some sort of conspiracy to get Wallace fired to satisfy the customer, Wuest. The circumstances were that that was not necessary as there is no contention but that Wallace worked at the pleasure of Borden and could be dismissed at any time. This is not a suit for wrongful discharge. In fact, any damages for loss of employment were excluded under the Court’s charge. This is a suit for slander. The question is whether there was any malice to cause Andrews to make the statement to Knight. What evil motive was there in answering this friend’s question about another friend? We have searched the record and found no evidence of malice.

Was Andrews actuated by malice in telling the polygraph operator, Morrell, that Wallace was suspected of committing dishonest acts amounting to theft at the Wuest Store? As indicated, Borden had a policy of using polygraph tests in their preemployment interviews and in determining questions of honesty when they arose. When offered the polygraph test, Wallace consented and went with Andrews to the office of the polygraph operator, Morrell. In consenting to this test, he must have known that the test could not be conducted without the operator being told what the charges or circumstances were. Thus, he consented to Morrell’s being told by Andrews that he, Wallace, was suspected of committing dishonest acts at the Wuest Store. We see no malice in the telling and no evil motive in complying with the consent or wish of Wallace. In addition to the fact of no evidence, it is held that one may not recover the damage caused by a publication invited by him. Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770 (1945); Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246 (1942); 36 Tex.Jur.2d Libel and Slander, Sec. 34, p. 321 (1962); 53 C.J.S. Libel and Slander § 95, p. 151 (1948); Duncantell v. Universal Life Insurance Company, 446 S.W.2d 934 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.).

There is yet another reason why Appellee cannot recover as to the statement to Morrell. Liability in that regard is predicated on Special Issue No. 6, which reads:

“Did J. C. Andrews on or about May 14, 1974, tell Ron Morrell that Plaintiff Robert Wallace was suspected of committing dishonest acts amounting to theft at the Wuest Oak Park Store?”

The jury answered “yes.” This was followed by Special Issue No. 7:

“Were the statements inquired about in Issue No. 6 true?”

The jury answer was “No.” It was incumbent upon the Appellee to get a proper finding that Andrews told Morrell that Wallace was suspected of committing dishonest acts amounting to theft, and, further, to get a proper finding that such statement was false. A “no” answer to the inquiry of whether or not the statement inquired about was true is not a converse finding that the statement was false. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966). The “no” answer is only a finding that the Defendant failed to carry the burden of proof on the issue as to whether or not the statement was true, when the issue actually should have placed the burden upon the Plaintiff to prove that the statement was false. But the semantics of the issue become unimportant, for we conclude that as a matter of law the facts inquired about in Special Issue No. 6 were true.

Since the Courts of Civil Appeals are final in slander cases, Tex.Rev.Civ.Stat. Ann. art. 1821, there is no need to consider the other points of error.

For the reasons discussed, the judgment of the trial Court is reversed and judgment is here rendered that Appellee take nothing.

OPINION ON MOTION

PER CURIAM.

Appellee in this cause, joined by his attorney W. Page Keeton, has filed a motion asking this Court to determine the qualifications of W. Page Keeton to be lead counsel. Appellant has filed an answer attaeh-ing thereto Opinion No. 259 of the State Bar of Texas Professional Ethics Committee, and Appellants have joined in the motion asking this Court to make a determination as to counsel’s qualifications.

The question involved is a possible conflict of interest of W. Page Keeton to now represent Appellee when he had previously had brief employment in the case by Appellants. Shortly after the return of the verdict for $1,000,000.00 in this cause, Attorney Robert B. Thornton contacted W. Page Keeton concerning his willingness to be engaged in an appeal on behalf of the Appellants, Borden, Inc., and J. C. Andrews. A conversation ensued in which Attorneys Thornton and Keeton discussed the merits of an appeal of the cause for approximately one hour. In that conversation, the charge of the Court given to the jury was discussed, as well as some of the evidence presented to the jury, and Keeton suggested certain things for the motion for new trial, after which time some of the documents, all of which would be part of the record, were left with W. Page Keeton for his examination and ultimate use in connection with preparing an appeal. However, Keeton did nothing more on the case and shortly thereafter, within about a week, Attorney Thornton contacted Keeton and informed him that he, Thornton, had been terminated from the appeal of the case and that the appeal would now be handled by the law firm of Baker & Botts of Houston. Keeton was instructed to return all file documents which had been left in his possession, and to prepare a statement for services rendered. The file materials were returned and there was submitted a small fee statement which was paid. Appellee and Keeton bring the matter to this Court saying that the Attorneys for the Appellants have indicated that they feel that a conflict of interest exists and have indicated a desire for him to terminate his employment in representation of the Appel-lee, Robert Wallace. Keeton desires to continue the employment and in support of his position, cites the fact that no confidences were disclosed to him, and therefore none can be divulged by him in accordance with Disciplinary Rule 4-101, and further that no employment relationship exists as contemplated by Disciplinary Rule 5-105. He asserts that he is in no way disqualified in representing the Appellee and by this, his own motion, requests this Court to make a determination as to whether or not any basis for criticism exists in connection with his representation of the Appellee.

We view the question as being one purely of ethics and not for Court determination. The ethics of the matter and the qualifications to practice before this Court are two different things and are resolved by different tribunals. Under the provisions of the State Bar Act, Tex.Rev. Civ.Stat.Ann. art. 320a-l, the Supreme Court has promulgated rules governing the State Bar, including a Code of Professional Responsibility to govern the professional conduct of the members of the State Bar. Questions arising thereunder are determined by a committee of the State Bar. For instance, it has been held that authority to institute disciplinary procedures is vested specifically in the Grievance Committee of the District in which the Attorney resides. Arnett v. State, 304 S.W.2d 386 (Tex.Civ.App.—Eastland 1957, writ ref’d n. r. e.). The qualifications of persons who are authorized to practice are prescribed by Statute, and only a person licensed to practice law may appear in Court on behalf of another. It is the obligation of the Court to see that one so appearing is duly qualified and licensed.

The ethics of this matter are not before us and we express no opinion thereon. The qualifications of the movant are not in issue. That is the only issue we could rule on and it is not before us. The motion is denied.