author: MURRAY, Justice.

text:
    Ex parte Margaret B. TRICK.
    No. 16200.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 5, 1978.

      Daniel R. Rutherford, San Antonio, for appellant.
    Gary D. Howard, San Antonio, for appel-lee.
   OPINION

MURRAY, Justice.

This is a habeas corpus proceeding. Lorence W. Trick and Margaret B. Trick were divorced on June 14,1978, in Bexar County, Texas. The divorce judgment ordered that their home be sold and the net proceeds be divided equally between them. The divorce judgment also stated:

It is further ORDERED, ADJUDGED AND DECREED by the Court that MARGARET B. TRICK shall have the opportunity of completing or consummating the sale of the home for the sum of $150,000.00, without the necessity of a real estate commission. That if after a period of 30 days, ending August 7, 1978, such a sale is not successfully completed, then LORENCE W. TRICK shall have the opportunity of making and completing the sale of the home for a minimum of $160,000.00 out of which commissions will be paid. That in either instance upon the completion of the sale of the home, both parties are ordered to sign and complete the necessary papers for the sale of the home.

The divorce judgment further provided that Mr. Trick shall take as his separate property “the silver coin collection.”

Mrs. Trick filed a motion for new trial, which was overruled by operation of law on September 11, 1978. On October 2, 1978, she perfected her appeal from this judgment to our court by posting a cost bond with the District Clerk of Bexar County, Texas.

More than 30 days after the motion for new trial had been overruled by operation of law, the trial court entered the following order:

IT IS THEREFORE ORDERED by the Court that the Petitioner, LORENCE W. TRICK and the Respondent, MARGARET B. TRICK comply in its entirety with the decree of divorce dated July 21, 1978, by performing each and every act in preparing or delivering those items of property as enumerated in said decree of divorce and said property shall be exchanged on November 3, 1978 at 10:00 a. m. in the 224th Judicial Courtroom.

Mr. Trick filed a motion for contempt alleging that Mrs. Trick had willfully disobeyed this order by failing to perform each and every act in preparing or delivering those items of property as enumerated by the divorce decree of July 21,1978. On November 20, 1978, the court held Mrs. Trick in contempt of court for failing to sign a listing agreement with a real estate agent and for failing to deliver the coin collection to Mr. Trick. The order of contempt decreed:

It is therefore ORDERED, ADJUDGED AND DECREED by this Court that MARGARET B. TRICK, Respondent, be and is hereby adjudged to be in contempt of this Court and that the punishment therefor be fixed and assessed at a fine of $300.00 and confinement in the jail of Bexar County, Texas, for a period of three (3) days and that Respondent be thereafter further confined in said jail until Respondent has fully purged such contempt by the full observance and obedience of the order of this Court referred to above, by the following acts:
1. Executing the listing agreement for the sale of the home and delivering to the Movant herein the silver coil [sic] collection valued at approximately $10,-000.00;
2. Paying the costs of this proceeding, to-wit: $44.00 to be paid to the District Clerk of Bexar County, Texas.

The issue in this case is whether or not Mrs. Trick has violated the order of the district court in the divorce suit which divided the Tricks’ community property.

The divorce decree does not order Mrs. Trick to sign a listing agreement with a real estate company or to turn over the coin collection to her husband. The divorce decree divided the community property of the parties and declared their rights and obligations, but it did not reserve in the trial court any question to be determined at a later date. As a result, the trial court lost jurisdiction over this judgment thirty days after the motion for new trial was overruled. Tex.R.Civ.P. 329b. In a proper case, the trial court has jurisdiction to enforce its judgment by a contempt order. Nevertheless, after it becomes final, the trial court loses jurisdiction of the case, and it can no longer amend the judgment or grant a new trial.

In Ex parte Slavin, 412 S.W.2d 43 (Tex.1967), the Supreme Court restated with approval the accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms “so that such person will readily know exactly what duties or obligations are imposed upon him.” Id. at 44. Since a party could be subjected to punishment for violating a court order, the specificity of this rule is paramount, and nothing should be left to implication or conjecture. Based on this rationale the Supreme Court in Ex parte Slavin further stated that an order “should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing.” Id. at 44-45.

We hold that the divorce judgment is not sufficiently definite to support the order of contempt for Mrs. Trick’s failure to sign a real estate listing agreement and to deliver the coin collection to Mr. Trick. Only by inference or conclusion can it be said that Mrs. Trick has failed to comply with an order found in the divorce decree. Ex parte Filemyr, 509 S.W.2d 731 (Tex.Civ.App.—Austin 1974, no writ). In Filemyr the husband was held in contempt because he failed to pay to his wife 36 per cent of his military retirement pay which was awarded to his wife by the divorce decree. The court pointed out that there was no order instructing the husband to remit this amount to the wife each month and held that in the absence of such an order there was no basis for holding him in contempt. Accord, Ex parte Anderson, 541 S.W.2d 286 (Tex.Civ.App.—San Antonio 1976, no writ).

The district court was without authority or jurisdiction to render this judgment of contempt; therefore, the order is void. The relator is ordered discharged.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elwood L. MUNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 12853.
    Court of Civil Appeals of Texas, Austin
    Dec. 6, 1978.
    Rehearing Denied Feb. 7, 1979.
    Elwood L. Munson, James L. McManus, law intern, Austin, for appellant.
    Davis Grant, Gen. Counsel, Claude E. Du-cloux, Asst. Gen. Counsel, State Bar of Texas, Austin, for appellee.
   PER CURIAM.

Appellant seeks to overturn a default judgment of disbarment against him. The court overruled appellant’s motion for new trial.

We will affirm the action of the trial court.

This case originated from complaints filed with the Grievance Committee for the State Bar of Texas District 9. After several hearings conducted by the Grievance Committee, it was of the opinion that the appellant herein should be disciplined for certain acts of professional misconduct. The Committee then offered Munson a term of suspension which he, as was his right, refused to accept.

Suspension may not be imposed by a Grievance Committee without the specific written consent of the accused; therefore, the Committee’s only alternative was to seek discipline through the filing of a formal complaint in district court. Such a suit was filed in the district court against appellant alleging the acts of misconduct. He was served with citation on December 27, 1977. Appellant failed to file an answer by the appearance date, January 23, 1978, and a default judgment was entered against him on January 26, 1978.

Appellant is before us on three points of error; however, since we overrule his first point concerning his excuse for failure to answer, we do not reach the other points which are directed towards establishing a meritorious defense.

The first point assigns error of the trial court in overruling appellant’s motion for new trial because the court did not follow the test set out in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), and in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966).

The test set out in Craddock and again in Ivy is as follows:

“A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”

After a review of the testimony in this case, which lasted for the better part of two days, we conclude that appellant did not sustain his burden of showing that his failure to answer before judgment was not intentional, or the result of conscious indifference on his part. Consequently, we do not reach appellant’s points asserting a meritorious defense.

The testimony in the record before us was offered, principally, by appellant and Terry L. Belt, an attorney in Austin. Belt, who had represented appellant before the Grievance Committee, gave testimony that was fully developed, clear and unequivocal. He testified that he told appellant, well before the deadline for filing an answer, that Belt would not represent him any further unless a fee of $5,000 was paid. Appellant then proposed he assign to Belt an oil royalty belonging to some woman in Houston. Belt agreed to this transfer believing that the royalty was for $870 a month, but also insisted upon receiving the royalty prior to filing an answer. As time passed and no royalty was forthcoming, Belt learned from appellant that the royalty was an annual payment and not monthly, so Belt declined to accept this arrangement. Belt then informed appellant that for a payment of $2,000, he would file an answer in the case. According to Belt, appellant stated next that he definitely could not come up with the necessary $2,000. At that point Belt informed appellant he was no longer representing appellant and that appellant should pick up his files from Belt. Appellant denies hearing Belt make this statement. Appellant, an attorney and a certified public accountant, testified that he had never paid Belt anything. However, he was under the impression that Belt would file an answer for him anyway.

The Court in Craddock stated that although trial courts have some measure of discretion in a matter such as we have before us, as courts have in all cases governed by equitable principles, it is not an unbridled discretion to decide the cases as they might deem proper, without reference to any guiding rule or principle. The Court then set out the guidelines quoted earlier.

Nonetheless, in our judgment, and we so hold, under the facts summarized above, the court did not abuse its discretion in overruling the motion for new trial. Appellant’s defense of excuse rests upon disputed facts. The credibility of the witnesses and the weight to be accorded their testimony was to be determined, of course, by the district court. See Harrell v. Sunylan Co., 128 Tex. 460, 97 S.W.2d 686 (1936). By overruling the motion for new trial, the district court necessarily resolved the disputed facts against appellant. The trial judge had both witnesses before him and to overturn his decision on the truth of the circumstances of appellant’s mental attitude and reasons for not appearing would be to substitute our opinion for that of the trial judge who was in a better position to determine this matter. As Justice Reavley noted in a dissent, in a case with different facts, the trial judge is not required to grant a new trial merely upon the advancement of an excuse, no matter how unbelievable. Ward v. Nava, 488 S.W.2d 736 (Tex.1972). See also United Beef Producers, Inc. v. Lookingbill, 528 S.W.2d 310 (Tex.Civ.App.1975), writ ref’d n. r. e. per curiam, 532 S.W.2d 958 (Tex.1976); Russell v. Northeast Bank, 527 S.W.2d 783 (Tex.Civ.App.1975, writ ref’d n. r. e.); Young v. Snowcon, Inc., 463 S.W.2D 225 (Tex.Civ.App.1971, no writ); Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App.1956, no writ).

The judgment of the trial court is affirmed.

      . The defendant in that case denied any knowledge of the pending lawsuit or of receipt of the petition. There was no controverting testimony. Ward v. Nava, 488 S.W.2d 736 (Tex.1972).


author: WARD, Justice.

text:
    Andres Jesse GARZA et al., Appellants, v. WACO SCAFFOLD AND SHORING COMPANY, Appellee.
    No. 6709.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 13, 1978.
    Rehearing Denied Jan. 3, 1979.

      Malcolm McGregor, Inc., Malcolm McGre-gor, Philip T. Cole, Janet Ruesch, El Paso, for appellants.
    Dudley & Dudley, William C. Dudley, Robert A. Skipworth, El Paso, for appellee.
   OPINION

WARD, Justice.

This is a strict tort liability action involving a design defect. Three workmen were injured when shoring which had been leased from the Defendant by their employer gave way and large bridge beams upon which they were working fell. Trial was to a jury which failed to find that a design defect was present in the shoring. Based on the jury verdict, a take nothing judgment was entered. The Plaintiffs appeal and we affirm.

The three Plaintiffs were employed by Southwestern Industrial Contractors and Riggers, which was one of the contractors in the building of an interchange on Interstate Highway No. 10 in El Paso. Work was in progress in the construction of a bridge on the interchange, and six large steel girders had been placed on their permanent support at their west end, but were being supported at their east end by shoring which had been built up to some fifty feet in height. The shoring had been rented by the contractor from the Defendant, Waco Scaffold and Shoring Company. The shoring was being used by the contractor to erect four towers as the temporary supports or shoring for raising the large girders to their permanent support. On April 20, 1972, while the Plaintiffs were working on the girders, the supporting shoring collapsed and the men were thrown to the ground and seriously injured.

Upon the trial of the case, the Plaintiffs’ theory of liability was developed, and it was to the effect that the shoring was defective because swivel jacks which were at the top of the shoring columns permitted a rotating movement to occur to the cribbage or carriage which supported the large girders. This caused a lateral movement to occur to the load, and this in turn caused the successive collapse of the cribbage and of the shoring. The Plaintiffs’ testimony was further to the effect that the design of the swivel jacks at the top of the shoring was defective as a locking device should have been built into them to prevent any lateral movement from occurring when a load was put on top of the columns. The theory of the Defendant was that it rented the shoring only and that a contractor such as Southwestern Industrial Contractors and Riggers, when it was handling the large bridge beams, had to design and properly construct the cribbage or cradles which were placed atop of the shoring and which were designed to directly support the large bridge beams so that the load could be evenly and safely distributed to the legs of the shores; that the cribbage itself was improperly designed and constructed as it was without lateral bracing, and as a result certain of the cribbage beams collapsed under the large load and in turn caused the shoring to collapse.

In the first special issue submitted, the Court inquired of the jury if the failure of Waco to provide a locking mechanism in the swivel base jack assembly at the top of the shores rendered the shoring leased by Waco to Southwestern defective. The jury was instructed that a product is defective if the product exposes its user to an unreasonable risk of harm when used for the purpose for which it was intended. Unreasonable risk of harm meant that the article leased must be dangerous to an extent beyond that which would be contemplated by the ordinary user who leases it with the ordinary knowledge common to the community as to its characteristics.

The Plaintiffs requested of the Court the submission of the following issue as Special Issue No. 1:

“Do you find from a preponderance of the evidence that the swivel devices in the top of the Super X Shoring delivered by the defendant, Waco Scaffold and Shoring Company, permitted lateral movement?”

The Plaintiffs then requested Special Issue No. 2 be submitted in the form which asked if:

“ * * * the lateral movement permitted by the swivel devices in the top of the Super X Shoring delivered by the Defendant, Waco Scaffold and Shoring Company, rendered such shoring defective as herein defined?”

The failure of the trial Court to submit the issues as requested is the subject of the Plaintiffs’ first point which is to the effect that the inquiry by the Court regarding the Defendant’s failure to provide a locking mechanism in the swivel base jack assembly at the top of the shores was evidentiary only and highly restrictive, and that the Plaintiffs were entitled to the general submission of whether the swivel devices permitted lateral movement and whether such lateral movement rendered the shoring defective. Rules 277 and 279, Tex.R.Civ.P., mandate that special issues be submitted only if raised by both the pleadings and the evidence. Rule 277, as presently revised, provides that it shall be discretionary with the Court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It states that it will not be objectionable that a question is general or includes a combination of elements or issues. The problem presented to us is whether or not there has been a fair submission of the strict tort liability action of the claimed design defect under the pleadings and the evidence. We have no guide from the pleadings as they alleged a cause of action based solely on negligence and warranty, the evidence of strict liability having been introduced without objection and that theory developed by implied consent. The Plaintiffs argue that their expert’s opinion was to the effect that the cause of the failure was because the swivel devices permitted lateral movement; that such a design was dangerous; and that the movement could be eliminated in any number of simple ways, including, among others, a locking device. After reading the evidence, we disagree. The expert found no fault in the lateral movement as such in the swivel devices. His complaint was that before the load was applied, the devices should be locked and he suggested the use of setscrews in each swivel. Apparently, the attorney for the Plaintiffs agreed with this interpretation as noted in his argument made against the Defendant’s motion for instructed verdict. He there stated that the proof had shown that the swivel devices without the capacity of being locked were unreasonably dangerous. We hold that the trial Court’s broad discretion in the submission of the special issue has not been abused and the first point is overruled.

While the Plaintiffs presented their theory of strict liability against the supplier for the design defect, the supplier relied upon misuse of the product by the contractor to defeat the claim. As pointed out, the misuse defense was that the contractor had designed and constructed a eribbage system that collapsed under the load, and which then permitted the load to fall through the shores to the ground. The trial Court submitted this defense by Special Issues Nos. 4 through 7, inclusive, which inquired whether the contractor, Southwestern, had failed to build an adequate cribbage system to hold the load; whether that failure was a misuse of the shores; and if the misuse was a proximate cause of the occurrence. Although the jury determined that Southwestern failed to build an adequate cribbage system by its answer to Special Issue No. 5, it failed to find that there was a misuse of the shores by Southwestern, and consequently did not reach the proximate cause issue. Special Issue No. 7, the last of the series of defensive issues, was conditionally submitted; that is, the jury was instructed to answer it only if an affirmative answer was made to Special Issues Nos. 3 and 6. Special Issue No. 3 was not answered, as the jury failed to find any defective shoring as contended by the Plaintiffs, and, as stated, Special Issue No. 6 was not answered as the jury had failed to find a misuse of the shores by Southwestern.

Contrary to the instruction, the jury answered Special Issue No. 7, the submission of which and the jury’s answer being as follows:

“What percentage of the fault as found by your answers to Questions Nos. 1 and 5 do you find from a preponderance of the evidence to be attributable to each of the parties listed below? ANSWER BY STATING THE PERCENTAGE, IF ANY, OPPOSITE EACH NAME.
WACO 25% .
SOUTHWESTERN 75% .
TOTAL 100%”

Apparently, the Defendant was attempting to use the misuse defense which reduces recovery under certain circumstances when it is a concurring cause as that reduction defense was originally developed in General Motors Corporation v. Hopkins, 548 S.W.2d 344 (Tex.1977). That defense should not have been applied in the present case. These Plaintiffs/workmen did not misuse the product. Further, they were covered by workmen’s compensation benefits, and their possible recovery against the third-party supplier could not have been diluted had they established that the Defendant furnished a defective product which was a producing cause of their injury. Finally, the Defendant was statutorily prohibited by the Workmen’s Compensation Act from recovery upon any theory of contribution or indemnity as against the employer unless so protected by the terms of a written contract. Tex.Rev.Civ.Stat.Ann. art. 8306, Sec. 3.

Regardless, the jury did answer Special Issue No. 7 as indicated, and this action becomes the subject of a series of the Plaintiffs’ points, jury misconduct being the complaint made in the second point. Rule 327, Tex.R.Civ.P., requires that the Plaintiffs prove that an overt act of misconduct occurred, that it was material misconduct, and “from the record as a whole an injury probably resulted.” Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969). It can be stated that misconduct did occur. Five jurors testified at the hearing on the motion for new trial, two being called by the Plaintiffs. The testimony of the jurors as a whole was to the effect that when they were either discussing, voting on or after completing their vote on Special Issue No. 7, the statement was made and a discussion occurred that Waco would pay 25% and Southwestern would pay 75% of the damages suffered by the Plaintiffs. The materiality of this misconduct and its probable harm is something else. The three jurors called by the Defendant testified that they first considered Special Issue No. 1, and after considerable discussion and voting they answered the issue “No,” the vote being recorded as showing two dissents. Because they had been charged to render their verdict upon the vote of ten or more members, they proceeded to answer the balance of the questions. According to these jurors, the misconduct occurred when they reached and were discussing Special Issue No. 7; and that after completing the verdict, the foreman inquired of the jury if there remained any dissents, and no one answered to the contrary. The verdict was then signed by the foreman as being a unanimous one and was so received after the Court had inquired if it was their verdict. The two jurors called by the Plaintiffs testified to a different version. They stated that a final vote was not taken on Question No. 1 before the misconduct occurred, and that the vote was either seven to five or nine to three on the issue and that they then moved on to Question No. 7 when the discussion occurred about the Plaintiffs being paid. It was after this that these two jurors and the other dissenters then changed their votes on Special Issue No. 1. The time during jury deliberations at which misconduct occurs is an important factor in determining the probability of injury. Fountain v. Ferguson, supra. Since there are no findings of fact, the trial Court presumably found all facts necessary to the support of its judgment. This would necessarily include the implied finding that the misconduct occurred as was testified to by the three jurors called by the Defendant. Under that version, the misconduct was immaterial and caused no harm since no more than two jurors changed their votes because of the comments. Rule 292, Tex.R.Civ.P.; Tees v. Tees, 546 S.W.2d 912 at 916 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ). The point is overruled.

The Plaintiffs assert that the trial Court was in error in not declaring a mistrial as the jury’s answers to Special Issues Nos. 1, 5 and 7 create a fatal conflict. The trial Court has the duty to reconcile apparent conflicts in the jury’s findings, if this can reasonably be done in the light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558 (1949). The rule is established that a trial Court properly harmonizes any apparent conflict between a specific finding of no negligence as to a defendant in the liability issues and an apportionment of negligence in the subsequent comparative negligence issue when it enters a judgment for the defendant, the rule being that the specific finding directed toward the liability aspect of the verdict controls over the general finding of comparative negligence. Tennessee Gas Pipeline Company v. Hartman, 556 S.W.2d 616 (Tex.Civ.App.—Corpus Christi 1977, no writ); Ingles v. Cohen, 543 S.W.2d 455 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.). We adopt the reasoning applied to those negligence cases to the fact situation presently before the Court, and the point is overruled.

The Plaintiffs argue by their fifth point that if there was no fatal conflict, then they are entitled to judgment on the verdict based on the jury’s answer to Special Issue No. 7. The Plaintiffs filed a motion to disregard the jury’s answer to Special Issue No. 1 because the same was evidentiary and not a controlling issue. That contention has been disposed of when we overruled the Plaintiffs’ first point. There was no fatal conflict since the specific finding on Special Issue No. 1 controls over the general finding in relation to the percentages of fault. That being the case, the trial Court had no other alternative but to enter judgment for the Defendant. Tennessee Gas Pipeline Company v. Hartman, supra. The point is overruled.

The final point to be discussed is the Plaintiffs’ third point, which complains of the action of the trial Court in refusing the Plaintiffs’ offer into evidence of the lease agreement made between Waco and Southwestern concerning the shores. The lease contained an alleged indemnity agreement in the following form:

“ * * * Lessee [Southwestern in this case] assumes all responsibility for claims asserted by any person whatever growing out of the erection, maintenance, use, operation or possession of said Goods and will hold Lessor harmless from all claims for liability to persons or property. * * ”

Based on this indemnity agreement, Waco had impleaded Southwestern as a third-party Defendant praying for indemnity or contribution, and that third-party action had been severed from the instant case. A summary judgment had been entered in that third-party action in favor of the third-party Defendant, Southwestern. That judgment had not become final at the time of the present trial.

The materiality of the contract comes about as Waco, the Defendant in the present case, called as a witness George Hatch who testified before the jury that he was the executive vice president of Southwestern, and that he and his Company had direct responsibility for the cribbage system that was used on the job in question. He testified that the shoring system of the Defendant was adequate, that he found no fault with the shores provided by Waco, and that the fault was with his own Company’s cribbage system and, finally, he testified that he personally accepted the responsibility for the accident. The lease contract was offered for the purpose of showing the bias or credibility of Mr. Hatch. The trial Court expressed its concern as to the jury’s possible speculations as to whether or not Southwestern would actually be liable to Waco in the third-party action and ruled that it would not permit the introduction into evidence of the indemnity agreement between the parties, but would permit the introduction into evidence of the fact that the lawsuit was existing between the two Companies. Pursuant to this, Hatch testified on cross-examination that his Company’s insurance carrier lawyer was representing Southwestern in that indemnity litigation; that Hatch knew that a legal dispute developed between Waco Scaffolding and his firm concerning Southwestern being financially responsible to pay the damages in the present case; and that the legal dispute was one in which Waco was saying that if it should lose the present case, Southwestern Industrial Contractors and Riggers, Inc. would be the one to pay the damages that might be awarded by the jury to the Plaintiffs in the present case.

The Plaintiffs argue that they were entitled to present the written signed contract before the jury as it would more effectively show the bias of Mr. Hatch and his concern for his Company; that it was not a question of what the ultimate liability of Southwestern would be to Waco, but was a question of Mr. Hatch’s present concern for the protection of his Company; and that the written contract would best disclose his present interest, bias or motive in accepting the blame before the jury in the present lawsuit. Such an inquiry was a proper subject of cross-examination and proof. General Motors Corporation v. Simmons, 558 S.W.2d 855 (Tex.1977); Aguilera v. Reynolds Well Service, Inc., 234 S.W.2d 282 (Tex.Civ.App.—San Antonio 1950, writ ref’d). However, in this case, the trial Court permitted sufficient cross-examination on the subject. Regardless, if there was error, it did not cause the rendition of an improper judgment in this case and was harmless. Tex.R.Civ.P. 434.

The judgment of the trial Court is affirmed.


author: CADENA, Chief Justice.

text:
    Roberto D. PEREZ, Appellant, v. Marian S. PEREZ, Appellee.
    No. 16022.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 13, 1978.
    Rehearing Denied Jan. 24, 1979.

      M. M. Pena, Jr., San Antonio, for appellant.
    Patrick K. Sheehan, Cox, Smith, Smith, Hale & Guenther, San Antonio, for appel-lee.
   OPINION

CADENA, Chief Justice.

Roberto D. Perez, defendant below, appeals from a judgment ordering him to pay to his former wife, Marian S. Perez, plaintiff, a portion of the military readjustment pay “if, as and when” he receives such pay under the provisions of 10 U.S.C. § 687 (1975).

The parties were married on March 9, 1963, at which time defendant was a first lieutenant in the United States Army Reserve. On April 1, 1964, defendant was called to active duty. The parties were divorced on August 25, 1970, after being married for seven years and six months, but the divorce decree made no reference to the readjustment pay benefits.

Defendant, who had attained the rank of major, was involuntarily released, effective October 3, 1977, at which time he had been on active duty for 16½ years. Six years and five months of such active duty were rendered by defendant while he and plaintiff were married. This suit was filed by plaintiff on September 13, 1977. Plaintiff claims that the defendant’s right to readjustment pay was, in part, an asset of the community estate of the parties and that since such asset was not disposed of by the decree of divorce, she and defendant owned interests in the readjustment benefits as tenants in common.

Title 10 of U.S.C. § 687(a) provides that a reserve officer who is involuntarily released from active duty and who has completed, immediately prior to his release, at least five years of continuous active duty, “is entitled to a readjustment payment computed by multiplying his years of active service . . ., but not more than eighteen, by two months’ basic pay of the grade in which he is serving at the time of his release.” The statute then provides that such involuntarily released reserve officer may not be paid “more than two years’ basic pay of the grade in which he is serving at the time of his release or $15,000.00, whichever amount is the lesser.” The parties agree that the amount of readjustment pay receivable by defendant under the statute is $15,000.00.

Defendant claims that the trial court erred in awarding plaintiff an interest in the readjustment benefits because such benefits were never “vested” prior to the time that the parties were divorced, but, instead, were “contingent” because they were not due and payable until defendant was involuntarily released from active duty, and then only if he had completed five years of continuous active duty immediately prior to his involuntary release. For these reasons, defendant contends that the decisions holding that military retirement benefits are community property when the right to receive such benefits is derived from service during the marriage are not applicable. We disagree.

Defendant’s reliance on In re Howe, 381 F.Supp. 1025 (N.D.Fla.1974), is misplaced. The court in that case was considering the propriety of an order of the bankruptcy court requiring the bankrupt to turn over to the trustee in bankruptcy military readjustment pay received by the bankrupt after the petition in bankruptcy was filed. Under the provisions of 11 U.S.C. § 110 (1953), as interpreted by the court in Howe, title to property of the bankrupt passes to the trustee only if the bankrupt’s title was vested at the time the petition in bankruptcy was filed. We are not here concerned with the correctness of this interpretation, but need only point out that Howe held that the readjustment pay was not payable until the bankrupt was involuntarily released from the United States Marine Corps; because such release did not occur until after the filing of the petition in bankruptcy was filed, the bankrupt’s right to readjustment pay was contingent at the time of filing of the petition, and therefore, remained the property of the bankrupt. 381 F.Supp. at 1026-27.

We need not evaluate the propriety of the conclusion reached in Howe which was that the right to receive readjustment pay is “contingent” and not “vested” prior to the date of the reservist’s involuntary release. The esoteric distinctions between “vested” and “contingent” or “nonvested” rights are irrelevant to the determination of whether a right will be considered as part of the assets of the community estate. The argument that “contingent” or “inchoate” rights cannot be considered as part of the assets of the community estate until all events have occurred which irrevocably fix the liability of the government to pay the benefits was rejected by the Supreme Court of Texas in Cearley v. Cearley, 544 S.W.2d 661, 663-664 (Tex.1976). In rejecting the contention that only earned or vested rights can be considered community assets, the Supreme Court said: “We hold that such rights, prior to accrual and maturity, constitute a contingent interest in property and a community asset subject to consideration along with other property in the division of the estate of the parties . . . Id. at 666.

The opinion in Howe expresses the view that readjustment pay constitutes “severance” pay and cannot be considered “a lump sum payment for earned military retirement.” 381 F.Supp. at 1026. Again, there is no occasion to agree or disagree with such conclusion, since the characterization of a right as community or separate does not depend on the label used by the court in referring to the benefits flowing from such right.

The cases dealing with military retirement benefits, such as Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977), Cearley, 544 S.W.2d 661 (Tex.1976), Busby v. Busby, 457 S.W.2d 551 (Tex.1970), and Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.—San Antonio 1968, writ dism’d.), furnish no support for the contention that the characterization of retirement benefits as community assets rested on the fact that the benefits in question were retirement benefits. In Brown v. Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976), the Supreme Court of California said: “Pension rights, whether or not vested, represent a property interest; to the extent that such rights derive from employment during coverture, they comprise a community asset . . . .” This portion of the Brown opinion received the stamp of approval of the Texas Supreme Court in Cearley. See 544 S.W.2d at 663.

The decisive factor is that, whatever the nature of the benefits involved, the right to receive them has been earned, in whole or in part, by rendition of services during cov-erture. To the extent that the right rests on services rendered during coverture, that right is the fruit of what must be considered as community effort.

The legislative history of the military readjustment pay statute reveals that its purposes are to induce reservists to remain on active duty and to aid reservists who are involuntarily released upon their re-entry into civilian life. S.Rep.No.2288, 84th Cong., 2nd Sess. 585, reprinted in [1956] U.S.Code Cong. & Admin.News, p. 3061. Part of the justification for the legislation providing for readjustment pay was stated as follows:

So long as our national policy requires reservists on active duty to augment the regular forces, some compensation to these reservists in readjusting to civilian life seems a justifiable element of the cost of national defense. A part of the justification for the bill flows from the obligation to treat these reservists fairly; at the same time, significant benefits may accrue to the Government. . Capable Reserve officers, in the knowledge that they will be eligible for readjustment pay if involuntarily released, should have an increased feeling of security and should be more likely to remain on active duty for extended periods.”

Id. at 3062 (emphasis added).

The statute itself states that the involuntarily released reservist “is entitled to a readjustment payment” computed in the manner prescribed in the statute. 10 U.S.C. § 687(a) (1975). The portion of the Senate Report quoted in the preceding paragraph speaks of “compensation” and refers to the “obligation” of the government. Thus, there is no basis for concluding that the readjustment pay constitutes a gift by the United States. The right to the readjustment pay is earned during each month of military service. The portion which defendant earned while married to plaintiff must be considered as having been earned by the community.

In Howe, the court said that readjustment pay could not be considered wages within the meaning of a Florida statute exempting wages due the head of a household for services rendered in the past. 381 F.Supp. at 1026. A right to receive money, where the right is derived from services rendered during coverture, does not depend for its community status on the characterization of the money as “wages.” It cannot be seriously contended that only wages may be regarded as community assets.

The judgment of the trial court is affirmed.


text:
    GAS PRODUCING ENTERPRISES, INC., Appellant, v. J. G. GUERRA, Appellee.
    No. 16030.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 13, 1978.
    Rehearing Denied Jan. 24, 1979.

      David S. Gamble, Houston, for appellant.
    McGinnis, Lochridge & Kilgore, Lloyd Lochridge, Austin, for appellee.
   OPINION

CADENA, Chief Justice.

Gas Producing Enterprises, Inc., one of several defendants below, appeals from an order of the district court overruling its plea of privilege. Plaintiff J. C. Guerra’s controverting affidavit contends that the suit against Gas Producing Enterprises, Inc., is properly maintainable in Jim Hogg County under subdivisions 14,23, and 29a of our general venue statute, Article 1995, Tex.Rev.Civ.Stat.Ann. (Vernon 1964). Gas Producing Enterprises, Inc., will be identified in the remaining portions of this opinion as “GPE.”

Insofar as disposition of this appeal is concerned, the suit below may be described as a suit by plaintiff against Clinton Man-ges and GPE. Plaintiff sought the following relief:

1. To have certain deeds which conveyed to Manges plaintiff’s undivided interest in the surface estates and one-half of plaintiff’s undivided interest in the mineral estates in certain lands situated in Jim Hogg County set aside because of fraud; and

2. To have an “Option Agreement” and “Repayment Agreement” executed by Manges and GPE declared invalid and removed as a cloud on plaintiff’s title.

Although the order overruling GPE’s plea of privilege recites that evidence was heard, no statement of facts has been filed in this court. GPE does not here present any point or argument which asserts that the suit against its co-defendant, Manges, was not maintainable in Jim Hogg County under subdivision 14 of the venue statute. Since, in the absence of a statement of facts, we must assume that the court heard evidence supporting all findings necessary to justify overruling GPE’s plea of privilege, we must assume, and GPE does not deny, that the evidence established that Manges was not a resident of Jim Hogg County.

Subdivision 29a provides:

Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.

Tex.Rev.Civ.Stat.Ann. art. 1995 (Vernon 1964). In order to avail himself of subdivision 29a for the purpose of establishing venue in Jim Hogg County with reference to GPE, it was incumbent on plaintiff to show (1) the propriety of venue in that county as to Manges under some exception to the general venue rule and (2) that GPE was a “necessary party” to the cause of action as to which venue against Manges has been established. 1 R. McDonald, Texas Civil Practice § 4.36 at 544-45 (rev.1965).

As there is no contention that Manges is not subject to suit in Jim Hogg County under the exception embodied in subdivision 14, we need only determine whether GPE is a necessary party to the suit against Manges. Subdivision 29a places on plaintiff the burden of proving by independent evidence that GPE is a necessary party to such suit. Ladner v. Reliance Corp., 293 S.W.2d 758, 763-764 (Tex.1956).

GPE’s contention that it is not a necessary party, within the meaning of subdivision 29a, to plaintiff’s suit against Manges is based on what now appears to be the settled rule that plaintiff was required to show that no effectual decree affording him the complete relief to which he is entitled against Manges could be entered without the joinder of GPE. Union Bus Lines v. Byrd, 142 Tex. 257, 259, 177 S.W.2d 774, 775 (1944); See City of Azle v. Baty, 553 S.W.2d 812 (Tex.Civ.App.—Fort Worth 1977, no writ).

Where plaintiff, if successful, is entitled to a joint judgment against two defendants and the suit is maintainable where filed as to one of the defendants under another subdivision of Article 1995, the other defendant is a “necessary party” within the meaning of subdivision 29a. Ladner v. Reliance Corp., 293 S.W.2d at 764; Commonwealth Bank & Trust Co. v. Heid Bros., Inc., 122 Tex. 56, 60, 52 S.W.2d 74, 75 (1932). In this case plaintiff seeks the cancellation of certain instruments executed by Manges and GPE. It is clear that if he is successful he will be entitled to a joint judgment against both defendants declaring the instruments canceled. Under the applicable test, GPE is a necessary party to plaintiff’s suit against Manges.

In the absence of a statement of facts it must be assumed that plaintiff proved, by a preponderance of the evidence, the facts necessary to show that, if successful, he is entitled to a joint judgment against Manges and GPE. Since the suit was properly maintainable against GPE under subdivision 29a, we need not decide whether venue as to GPE could be sustained under subdivision 14 or subdivision 23.

The judgment of the trial court is affirmed.


author: COLEMAN, Chief Justice.

text:
    Benjamin B. TURNER, Jr., Appellant, v. Harriet Calvin TURNER, Appellee.
    No. 17243.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 14, 1978.
    Ragan, Russell & Rorschach, James D. Norvell, Houston, for appellant.
    Law Offices of Roy W. Moore, Roy W. Moore, Warren G. King, Houston, for appel-lee.
   COLEMAN, Chief Justice.

Benjamin B. Turner, Jr. filed a Bill of Review by which he sought to set aside a property settlement agreement providing for contractual alimony which had been incorporated in a divorce decree. After a Show Cause Hearing, during which testimony was introduced, the trial court entered a judgment that petitioner take nothing by the suit and that the respondent be dismissed with her costs.

The petition for Bill of Review was filed on January 17,1978. The respondent, Harriet Calvin Latimer, filed an Amended Answer which concluded with a prayer that petitioner appear and show cause why the Bill of Review should not be denied. In response to this pleading the trial court entered an order that petitioner appear before the court on the third day of April, 1978, to show cause why petitioner’s Bill of Review should not be denied. Prior to the date set for the hearing the petitioner filed a brief to the court discussing authorities supporting his contention that his pleadings were sufficient to state a cause of action for a Bill of Review.

The respondent filed a reply brief in which she discusses the factual matters alleged in the Bill of Review and the pertinent authorities. She concludes with the statement “Petitioner has no meritorious defense which he can assert that would have changed the outcome of the previous final judgment. He does not allege any acts on the part of respondent or her attorneys which amount to fraud, and he is precluded by his own negligence, his failure to do equity and his retention of benefits under the property settlement and support agreement from invoking equitable relief.”

On the date set for the hearing the record reflects that both parties appeared in person and by attorney and announced ready for “hearing”. Counsel for Mrs. Latimer then stated to the court the history of the proceeding and the reasons why he contended that the Bill of Review should be dismissed. He called the court’s attention to the fact that briefs had been filed, stating the reasons of the respective parties why the court should or should not dismiss the Bill of Review. He then stated that he did not contend that the Bill of Review should be dismissed on the inadequacy of Mr. Turner’s pleadings, “but simply on the fact question”. He argued that the court should determine whether not there had been any intrinsic or extrinsic fraud on the part of Mrs. Latimer, and whether or not there was negligence on the part of Mr. Turner. He suggested that testimony would show that Mr. Turner had accepted the benefits of the judgment and thereby was precluded from seeking to overturn it.

The attorney representing Mr. Turner then stated to the court that Mrs. Latimer had answered by merely denying the allegations of the petition for Bill of Review. He stated that she comes before the court saying “I deny everything he said, and therefore it ought to be dismissed and that’s not the way to try lawsuits in this county”.

There was further discussion of the authorities by the attorneys and the court and statements of what the evidence would show. The attorney for Mrs. Latimer then requested permission to introduce testimony stating that this was not a summary judgment procedure and that he was asking the court to “rule on the evidence”. Mrs. La-timer was then sworn as a witness and testified both on direct examination and cross examination. At the conclusion of her testimony, Mrs. Latimer’s attorney asked permission to file a trial amendment. The court then announced that he was going to deny the Bill of Review. The attorney for Mr. Turner promptly gave notice of appeal and stated that he wished to take exception to the ruling and to the proceeding “on the theory that this proceeding is not authorized in law for a show cause such as this, and the entire proceeding is erroneous”. He pointed out that he had not been permitted to offer evidence.

The trial court then stated that he would permit Mr. Turner to put on his evidence. At that time Benjamin B. Turner, Jr. was sworn as a witness and testified on both direct and cross examination.

At the conclusion of this testimony the attorney for Mrs. Latimer again requested permission to file a trial amendment. At that time the attorney for Mr. Turner objected to the filing of the trial amendment and objected to the proceedings for the reason that it was “highly contrary to the rules of civil procedure” and that it was not a motion for summary judgment or any proceeding authorized by law. The court stated that the question before him was a matter of law. The counsel for Mr. Turner protested that if the petition did not state a cause of action as a matter of law then a motion for summary judgment should have been filed, and that a show cause hearing was not the proper procedure for disposing of the matter.

The procedure followed in the trial of this matter is not one authorized by local rule or by the Rules of Civil Procedure of the State of Texas. The case was never set down for trial on the merits on the contested docket as provided in the local rules. The hearing was not one to determine the sufficiency of the petition since the respondent had filed no special exceptions. At the conclusion of the hearing the trial court entered a judgment on the merits.

There is nothing in the record to indicate that the petitioner had any notice that the cause was being set down for trial on the merits. Respondent’s answer was in the nature of a general demurrer to the petition for Bill of Review, a procedure which is not recognized by the courts of this state.

Unless this cause of action should be disposed of by a summary judgment, or on special exceptions, the petitioner is entitled to a trial on the merits in accordance with the applicable Rules of Civil Procedure.

No order was entered providing for a separate trial of an issue as provided in Rule 174(b), Texas Rules of Civil Procedure. There was no agreement express or implicit on part of the petitioner to submit the issues of fact which necessarily arise in a Bill of Review proceeding to the trial court for a decision as was in the case in Hernandez v. Light Pub. Co., 245 S.W.2d 553 (Tex.Civ.App.—San Antonio 1952, writ ref’d. n. r. e.). The attorney for Mr. Turner properly objected to the procedure when he realized that issues of fact were being presented to the trial court for decision. The trial court erred in overruling this objection.

An order to show cause has no greater effect than an ordinary notice of motion served without the sanction of the court or judge except with respect to shortening the time of service. Such an order is not to be regarded as an indication of any opinion by the court on the merits of the application and will not shift the burden of proof. 60 C.J.S. Motions and Orders § 20, page 33.

In Green v. Green, 424 S.W.2d 479 (Tex.Civ.App.—Tyler 1968, n. w. h.), the court pointed out that the use of a show cause order is usually effective only to the extent that it requires the defendant, if he so desires, to contest the necessity of the ad interim order, without the necessity of having to appear generally or answer. This was a plea of privilege case in which the issue was whether the appellee had expressly or impliedly waived her right to assert her plea of privilege by appearing in response to a show cause order. The court held: “The hearing was forced upon appel-lee by the appellant. Appellee’s participation in a preliminary hearing from which she could not escape would not, in our opinion, amount to a waiver of her plea of privilege.”

Essentially the same holding is found in Gibson v. State, 288 S.W.2d 577 (Tex.Civ.App. Waco 1956, writ dism’d). These cases point up the preliminary nature of a proceeding to show cause, and both hold that appearance in response to such an order is not an appearance on the merits of the case.

Turner was required to allege, and on the final trial to prove, a meritorious defense to the cause of action alleged to support the judgment obtained against him, which he was prevented from making by the fraud, accident or wrongful act of the opposite party, unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950).

In his petition Turner has attempted to meet the requirements for a Bill of Review set out in Alexander v. Hagedorn, supra. We find it unnecessary to determine whether or not he has done so because in the event his petition should be found defective he would be entitled to file an amended pleading. The facts adduced on this hearing do not show that a sufficient pleading could not be alleged. Ragsdale v. Ragsdale, 520 S.W.2d 839 (Tex.Civ.App.—Fort Worth 1975, no writ hist.); Martin v. Hunter, 233 S.W.2d 354 (Tex.Civ.App.—San Antonio 1950, writ ref’d n. r. e.).

The judgment is reversed and the cause is remanded.


author: CORNELIUS, Chief Justice.

text:
    Larry WILLIAMS et ux., Appellants, v. Don LOFTICE, Individually and d/b/a United Auto Brokers, Appellee.
    No. 8616.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 19, 1978.
    Michael D. Allen, Law Offices of Richard G. Danner, Jr., Dallas, for appellants.
    Roger F. Thomson, Smith, Schutze, Sand-erson & Boudreaux, Dallas, for appellee.
   CORNELIUS, Chief Justice.

Mr. and Mrs. Larry Williams filed this suit against Don Loftice, individually and doing business as United Auto Brokers, and Bill Tisdale pursuant to the Texas Deceptive Trade Practices Act. Tisdale failed to answer and an interlocutory default judgment was entered against him which subsequently became final. The case against Loftice was severed from that against Tis-dale and was submitted to the trial court for determination upon an agreed statement of facts. The court awarded judgment in favor of Mr. and Mrs. Williams for their actual damages but refused to triple the award or grant attorney’s fees as provided by the Deceptive Trade Practices Act. Mr. and Mrs. Williams appeal from that portion of the judgment which found no violation of the Deceptive Trade Practices Act and which denied relief in the form of treble damages and attorney’s fees.

According to the agreed statement of facts, Mr. Williams went to Loftice’s place of business in December of 1976 for the purpose of purchasing an automobile. He negotiated with Bill Tisdale, who was Loft-ice’s sales manager. Tisdale had full authority to negotiate the sales of automobiles in general and to negotiate with Williams in particular. He did not have in stock the type automobile Williams wanted, so he agreed to obtain one from a third party and then sell it to Williams for an agreed price. Pursuant to the agreement, Williams paid Tisdale a total of $1,900.00 as a deposit on the automobile. A receipt for the deposit was made on the United Auto Brokers receipt form and given to Williams. Tisdale failed to obtain or deliver the automobile as agreed and he also refused to return Williams’ deposit. Williams then demanded that Loftice either furnish the automobile as agreed or refund the deposit, but he refused to do either, stating that he was not responsible for Tisdale’s actions and that he was not bound by Tisdale’s agreement.

The Deceptive Trade Practices Act condemns as a false, misleading or deceptive practice, “misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction” and provides for recovery of three times the actual damages, together with court costs and reasonable attorney’s fees incurred by the person adversely affected by such practice. See Tex.Bus. & Comm. Code Sec. 17.46(b)(14) (Supp.1978) and Sec. 17.50(b)(1) (Supp.1978). It is without dispute that Loftice misrepresented the authority of Tisdale to act for him and bind him in the negotiation of the automobile sale with Williams, but the trial court concluded that the misrepresentation did not come within the Deceptive Trade Practices Act because it was made only after Tisdale had wrongfully failed to deliver to Loftice the $1,900.00 he had received from Williams as a deposit. Yet, the trial court found that Tisdale was Loftice’s agent and that his acts were imputed to and were binding upon Loftice.

The fact that Tisdale converted and absconded with the $1,900.00 deposit rather than delivering it to Loftice as he should have done, cannot be a defense to Loftice’s violation of the Deceptive Trade Practices Act. The fact is that Tisdale did have the authority to negotiate the sale with Williams. When he did so and accepted the cash deposit it was as if Loftice personally had done so. And when Loftice later attempted to repudiate the trade, and withhold Williams’ money upon the claim that Tisdale did not have authority to negotiate the sale, a clear violation of Sec. 17.46(b)(14) occurred. Crawford Chevrolet, Inc. v. McLarty, 519 S.W.2d 656 (Tex.Civ.App.Amarillo 1975, no writ).

It was stipulated that Williams’ actual damages were $1,900.00 and that reasonable attorney’s fees through the Court of Civil Appeals were $4,300.00. The judgment of the trial court is therefore reversed and judgment is here rendered that appellants have and recover from appellee Loftice, individually and doing business as United Auto Brokers, the sum of $5,700.00 damages, together with the sum of $4,300.00 attorney’s fees, and all costs of suit.

      . Tex.Bus. & Comm.Code Ann. Sec. 17.41, et seq. (Supp.1978).


text:
    Samuel LEAL and Milchem, Inc., Appellants, v. Javier RAMIREZ et al., Appellees.
    No. 16026.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 20, 1978.
    Rehearing Denied Jan. 24, 1979.

      M. W. Meredith, Jr., William A. Aber-nethy, Meredith, Donnell & Edmonds, Corpus Christi, for appellants.
    J. G. Hornberger, J. G. Hornberger, Jr., Laredo, for appellees.
   OPINION

CADENA, Chief Justice.

This is an appeal by defendants, Samuel Leal and Milchem, Inc., from an order of the district court of Webb County overruling their pleas of privileges. Leal is a resident of Jim Hogg County and Milchem, Inc., is a corporation which, for venue purposes, is a resident of Harris County. The only question before us is whether such defendants can properly be sued in Webb County under subdivision 9a of our general venue statute. Article 1995, Tex.Rev.Civ. Stat. (1964).

Plaintiffs are Eva Martinez Ramirez, who sues in her own right as the surviving widow of Romulo Israel Ramirez and as next friend of Javier Ramirez, Mary Agnes Ramirez, George Ramirez, and Rene Ramirez, surviving minor children of Romulo Israel Ramirez, to recover damages for the wrongful death of Romulo. The petition alleged that Romulo died as the result of injuries received in an accident involving a pickup truck being operated by Ramirez and a flatbed truck being operated by Leal who, at the time of such accident, was acting within the scope of his employment as an employee of defendant Milchem. The petition alleged several acts of negligence on the part of defendant Leal. It is undisputed that the accident occurred in Webb County.

In order to maintain venue in Webb County under subdivision 9a, plaintiffs had the burden of proving that Leal was guilty of negligence in Webb County; that, as far as Milchem is concerned, Leal, at the time he was negligent, was acting within the scope of his employment as the agent of Milchem; and that such negligence was the proximate cause of plaintiffs’ injury. 1 R. McDonald, Texas Civil Practice § 4.17.2 (rev. 1965). It is undisputed that the accident occurred in Webb County; that, at the time of the accident, Leal was acting within the scope of his employment as an employee of Milchem; and that plaintiffs suffered damages as the result of the death of Rom-ulo Israel Ramirez. Therefore, the only issue is whether the accident in question was proximately caused by the negligence of Leal.

This is the second appeal from an order overruling the defendants’ pleas of privilege in this case. On the first appeal, this court reversed the order of the trial court because of a lack of evidence that plaintiffs had suffered any damage. Since the record revealed that on the date of the first hearing Mrs. Ramirez, widow of the deceased and mother of the minor plaintiffs, was ill and unable to appear in court, we concluded that the interests of justice required that the cause be remanded and declined to order that judgment be entered sustaining the defendants’ pleas of privilege. Leal v. Ramirez, 553 S.W.2d 134 (Tex.Civ.App.—San Antonio 1977, writ dism’d).

On September 13, 1975, Leal was driving a flatbed truck proceeding in an easterly direction on Highway 359. Ramirez, driving a pickup truck, was proceeding in a westerly direction on the same highway. Highway 359 is a two-lane highway, and in this opinion the eastbound lane will be referred to as the “Leal lane,” while the westbound lane will be identified as the “Ramirez lane.” The vehicle operated by Leal will be referred to as the “flatbed,” while the truck operated by Ramirez will be described as the “pickup.”

At the time of the accident the highway was wet as the result of a drizzling rain. The collision occurred on the San Juanito Creek Bridge, about 17 miles east of the City of Laredo. Leal testified that after his vehicle had proceeded onto the bridge he saw the pickup for the first time as it was crossing the bridge about 50 or 75 yards away. According to Leal, when he first saw the pickup it “was coming along all right,” but as it neared him it went out of control. Leal’s testimony is somewhat confusing, since at one point his testimony indicates that the pickup was in Leal’s lane when Leal first saw it, while at another point in his testimony he stated that the pickup was about 15 feet away when it swerved into the Leal lane. When he saw the pickup Leal applied his brakes and turned to the left, but was unable to avoid the collision. Throughout his testimony Leal was consistent in stating that at the time he first saw the pickup Leal was already about 15 feet onto the bridge.

At the time of the accident, Rene Diaz, Leal’s nephew and fellow employee, was a passenger in the flatbed being operated by Leal. Diaz did not testify at the first venue hearing. Diaz said he saw the pickup for the first time when it was 50 to 75 yards away from the flatbed. At that time, the pickup was “zig-zagging” and was in Leal’s lane. Diaz told his uncle to move the flatbed to one side, at which time Leal applied the brakes and turned the flatbed toward the left. The flatbed began to skid and went into the Ramirez lane. Diaz testified that he first saw the pickup when the flatbed was about 10 or 15 yards from the bridge, and that the pickup never moved back into its proper lane.

Pablo Vela was operating his vehicle in an easterly direction, some distance behind the flatbed at the time of the accident. In the car with him were his wife and their children. His wife was changing one of the children’s diapers, and when Vela looked up, about 350 or 400 yards from the bridge, he saw the flatbed “going sideways,” with the front end facing north, and at that time the front end of the flatbed was “about in the center” of the highway. At that time the flatbed was on the bridge. Since the flatbed was moving into the Ramirez, or westbound, lane and the front end of the flatbed was facing north, he could see over the flatbed which was not loaded, and he saw no oncoming traffic in the Leal lane. If there had been a pickup approaching him in the Leal lane Vela would have seen it. He did not see the pickup collide with the flatbed, but he saw the flatbed “make a fourth of a turn, facing towards Laredo [west], and on the north [westbound] lane . . . it stopped.” When he arrived at the spot of the accident Leal told him, “I had a wreck.” Vela then went to the pickup and, in the cab, he saw two men. One man was dead and the other, Ramirez, “was still alive, but barely.” Vela also stated that when he arrived at the scene the rear of the flatbed’s cab was on the center lane, and the pickup was in the Ramirez lane, facing west. He stated the point of impact was in the Ramirez lane.

The two state troopers who investigated the accident arrived at the scene at 2:50 p. m. At that time the flatbed had been moved completely off the bridge. Leal testified that he moved his truck because the bed portion was completely blocking the eastbound lane. Vela testified that the eastbound lane was not blocked, and that before Leal moved his truck he and other vehicles proceeding in an easterly direction encountered no problems in the eastbound lane.

Officer Garner testified that the flatbed left 120 feet of skid marks, beginning at a point west of the bridge, so that Leal had begun to apply his brakes before he entered the bridge. These marks indicated that the flatbed was partially in the Ramirez lane before the flatbed entered the bridge. The pickup left 61 feet of skid marks, all in the Leal lane. In Gamer’s opinion, the impact occurred at or near the center stripe. At the moment of impact, in his opinion, the pickup was completely in the Leal lane and the flatbed was in, or partially in, the Ramirez lane. At the time the flatbed began to skid, its left front wheel was on the center stripe. When Garner examined the pickup he found two dead persons and four empty beer cans. There was the smell of alcohol in the cab and on the body of Ramirez. He testified that, in his opinion, Ramirez was intoxicated, although no blood tests, or any other test for intoxication, were made. According to Garner, the pickup went over into the wrong lane first. This opinion, he said, was based on the “physical evidence” and on what Leal and Diaz had told him. His opinion that Ramirez was intoxicated was based on the presence of the four empty beer cans, the smell of alcohol and the fact that the Ramirez truck was in the wrong lane, since he “could find no other reason to place him on the wrong side.” He testified that he did not know which of the two persons in the pickup had been drinking beer.

As pointed out in our prior opinion, the presence of two dead persons and four empty beer cans in a vehicle is no evidence that the driver of the vehicle was intoxicated. See 553 S.W.2d at 137.

As far as the physical facts are concerned, they do not preclude or make unreasonable the conclusion that the flatbed crossed into the wrong lane first. Leal testified that he did not see the pickup until he had driven his flatbed onto the bridge, and that at that time the pickup “was coming along all right.” The officer testified that if Leal was on the bridge when he first saw the pickup this fact would “blow” his theory which he said was based on the physical facts. It is clear from his testimony that the officer’s theory was based primarily on the fact that the flatbed had begun to skid some distance from the bridge and that it was at least partially in the wrong lane before it went onto the bridge. If Leal’s testimony is correct, then the flatbed had begun to skid and proceed toward the wrong lane before Leal saw the pickup.

The 61 feet of skid marks made by the pickup extended from near the center line arcing first in a southerly direction and then in a northerly direction back toward the Ramirez lane and the point of impact. The angle of the skid marks as depicted on the plat drawn by Officer Garner supports the conclusion that Ramirez had just pulled to his left across the center line and apparently had done so rather sharply just before he applied his brakes. This aspect of the testimony was pointed out in our prior opinion. 553 S.W.2d at 136.

At the second hearing, which culminated in the order from which this appeal is taken, Officer Garner testified that when he prepared the plat he “did not intend” to indicate that Ramirez had gone into the wrong lane at a point some 61 to 70 feet “from the point of impact.” We assume that the plat is accurate, and, in the absence of evidence to the contrary, that it correctly reflects what he found at the scene. Reasonable inferences may be drawn from such facts whether the officer intended that sueh inferences be drawn or not.

Based on the physical facts and Leal’s testimony that he did not see the pickup until he had driven his vehicle onto the bridge, it can reasonably be concluded that Leal began to swerve into the wrong lane before he saw the pickup. This conclusion is not made unreasonable by the opinion testimony of the officer, irrespective of what his intentions were as to the inferences he wished others to draw from the skid marks and the four empty beer cans.

Appellant stresses the fact that Diaz, Leal’s nephew and fellow employee, did not testify at the first hearing. We agree that the testimony of Diaz, if believed, would support a judgment sustaining the pleas of privilege. The testimony of this witness may be described as “clear and positive,” but it cannot be said that it is uncontradict-ed. It is directly contradicted by the testimony of Leal to the effect that he was already on the bridge when he first saw the pickup. Since, as the officer admitted, Leal’s testimony on this point, if true, destroys the officer’s “reconstruction” of the manner in which the accident occurred, it cannot be said that this conflict in the testimony of Leal and Diaz is insignificant. Simply stated, if the testimony of Diaz is correct, the officer’s theory is persuasive. If Leal’s testimony is correct, the officer’s theory is untenable.

The judgment of the trial court is affirmed.


text:
    Mrs. F. Snyder KING et al., Appellants, v. C. Lee WALTON and wife, Lois M. Walton, Appellees.
    No. 16070.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 20, 1978.
    Rehearing Denied Jan. 24, 1979.
    Joe Mike Egan, Jr., Kerrville, for appellants.
    Charlie Strauss, Law Office of James E. Nugent, Kerrville, for appellees.
   OPINION

MURRAY, Justice.

This suit was filed by C. Lee Walton and wife, Lois M. Walton, appellees, against Mrs. F. Snyder King, F. Snyder King, Jr,, and Albert Kenneth King, appellants, to enjoin interference with right of ingress and egress on a road across appellants’ land. Appellees alleged that they had a right to use the road because they had an easement by estoppel, a private easement by prescription, and a public easement by prescription. They also alleged that the road had been impliedly dedicated to the public. The jury returned a verdict favorable to appellees on all counts, and appellants have duly perfected this appeal from the judgment entered on said verdict.

It is appellants’ contention that there is no evidence to sustain any of the four counts and further that the trial court committed other errors, which would require a new trial. It is undisputed that the entire road on appellants’ land was continuously maintained by the County from prior to 1946 up until a portion was paved in 1967. The remaining part has been maintained by the County until the time of trial. Witnesses testified that as early as the 1940’s the road was used by the public.

We believe that the evidence amply supports a dedication of the roadway as a public road and an acceptance of this dedication by the public. We do not agree with appellants’ contention that there is no evidence to sustain the finding of implied dedication. In 19 Tex.Jur.2d Dedication §§ 11-31 (1960), the elements of dedication are stated as: (1) an intention of the landowner to devote his land to a public use; (2) a manifestation of the landowner’s intention through his words or acts, and a communication to the public or some portion thereof; and (3) an acceptance of the use of the property by the public. In disposing of a similar point, the Supreme Court, in O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878 (1960), examined the requirements of an implied dedication to the public. The evidence in O’Connor v. Gragg showed that the roadway had been in existence for over sixty-eight years and that the community, without asking, had used it as a public road. The Court held that this evidence supported a finding of implied dedication as a public road. The Supreme Court again cited with approval the rule that the act of throwing open property to public use, without any other formality, is sufficient to establish the fact of a dedication to the public. Other authorities, which supported a finding of implied dedication upon similar evidence, are: Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957 (1952); Compton v. Thacker, 474 S.W.2d 570 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.); Conway v. Irick, 436 S.W.2d 219 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.); Mallett v. Houston Contracting Company, 388 S.W.2d 216 (Tex.Civ.App.—Beaumont 1965, writ ref’d n. r. e.); Dunn v. Deussen, 268 S.W.2d 266 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.); Brown v. Kelley, 212 S.W.2d 834 (Tex.Civ.App.—Fort Worth 1948, no writ).

Indian Creek Road commences at the community of Ingram in Kerr County and runs in a southerly direction for five or six miles. Appellants contend that this road terminates at the entrance to their property, and appellees allege the road extends through appellants’ property to their property. This controversy concerns the portion of the road through appellants’ property. Albert Bittle, father of Mrs. F. Snyder King, originally settled the Bittle Ranch in 1898 and raised his family of seven children on the ranch. Albert Bittle built the ranch headquarters near the center of this 200-acre ranch. The road in question enters the Bittle Ranch on the north and continues in a southerly direction past the Bittle Ranch headquarters to appellees’ ranch. Mr. Albert Bittle died in 1939, and the ranch is now owned by Mrs. F. Snyder King. In the early 1960’s, Mrs. King moved back on the ranch with her family, and they have lived there ever since. Mr. King died in 1972.

Morris Morgan bought the present Walton Ranch from Dr. Greenwood in 1960 and sold it to appellees in 1967. He testified that he had used this road since 1940 and that the road was maintained with County equipment and County employees all the way from Ingram to the entrance of the Walton Ranch. In 1967, Mr. Morgan, at no expense to appellants, paved this road from the ranch house on the Bittle Ranch to his gate. After this road was paved, it was unnecessary for the County to maintain that portion of the road. The remaining part of the road has been maintained and repaired by the County with the approval and acquiescence of appellants to the present time. No objection was ever made to Morgan’s use of the road, and no permission was ever sought by him or anyone else to use the road. Mr. Morgan also testified that he agreed to alter the course of the road in one place because it was too close to the King Ranch house. Mr. Morgan further testified that in his opinion the road was at all times a public road and that he had a right to use it.

No testimony was given on when the road was first opened. County Commissioners, former County Commissioners, and employees testified that the road had been repaired and maintained by the County since 1938. The County Commissioners testified that they considered the entire road to be a county road open to the public.

Appellants also allege that the trial court erred in failing to define the term “dedication” in the charge of the court. We overrule this point. In Yellow Cab and Baggage Co. v. Green, 154 Tex. 330, 333, 277 S.W.2d 92, 93 (1955), our Supreme Court held: “When the Court’s charge contains no instruction, the complaining party must accompany his clear and specific objections to such omission with a substantially correct definition or explanatory instruction.” Accord, Tex.R.Civ.P., 279. Appellants’ proposed issues and instructions appear in the transcript on nineteen legal size pages. His requested definition of “dedication” comprises three of these pages. These three pages contain twenty-five statements of law pertaining to dedication and cite thirty cases as authority for these statements. We have carefully examined appellants’ requested definition, and we hold that the request as framed failed to measure up to the standards imposed by Rule 279 of the Texas Rules of Civil Procedure, which requires that the requested definition be in substantially correct wording.

We have concluded that the judgment of the trial court is supported by the finding of implied dedication; therefore, it becomes unnecessary for us to decide appellants’ points concerning estoppel, private easement by prescription, and public easement by prescription. All other points of error advanced by appellants are overruled, and the judgment of the trial court is affirmed.


text:
    Samuel LEAL and Milchem, Inc., Appellants, v. Christina Raquel RAMIREZ, Appellee.
    No. 16027.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 27, 1978.
    Rehearing Denied Jan. 24, 1979.
    M. W. Meredith, Jr., William A. Aber-nethy, Meredith, Donnell & Edmonds, Corpus Christi, for appellants.
    Mann, Freed, Kazen & Hansen, Laredo, for appellee.
   OPINION

CADENA, Chief Justice.

Samuel Leal and Milchem, Inc., two of the three defendants below, appeal from an order of the district court of Webb County overruling their pleas of privilege. It is undisputed that Leal and Milchem are not residents of Webb County, and that the third defendant in the case, Eva Martinez Ramirez, executrix of the estate of Romulo Israel Ramirez, deceased, is a resident of Webb County.

Ofelia V. Ramirez, widow of Heberto J. Ramirez, filed suit on her own behalf and as next friend of Christina Raquel Ramirez and Ana Laura Ramirez, minor children of Heberto J. Ramirez and Ofelia V. Ramirez; Sara Alicia Ramirez Rodriguez, Jaime Luis Ramirez and Heberto L. Ramirez, children of Heberto J. Ramirez. The purpose of the suit was to recover damages for the death of Heberto J. Ramirez as the result of injuries received in a vehicular collision on Highway 359 in Webb County. At the time of the collision, Heberto J. Ramirez was a passenger in a pickup truck being operated by Romulo Israel Ramirez, which came into collision with a flatbed truck being operated by Samuel Leal, employee of Milchem, Inc. It is undisputed that at the time of the accident Leal was acting within the scope of his employment.

In their controverting plea plaintiffs relied on subdivisions 4 and 9a of our venue statute, Article 1995, Tex.Rev.Civ.Stat.Ann. (Vernon 1964), as the basis for maintaining the suit against Leal and Milchem in Webb County.

The driver of the vehicle in which Heberto J. Ramirez was a passenger at the time of the collision, Romulo Israel Ramirez, was also killed in the accident. The widow and children of the driver also filed suit to recover damages for his death. In that case, which will be referred to in this opinion as the “driver’s suit,” the defendants were only Leal and Milchem, both of whom filed pleas of privilege which were overruled by the trial court. In an opinion not yet published, we held that the evidence was sufficient to sustain venue in Webb County under subdivision 9a of the venue statute. Samuel Leal et al. v. Javier Ramirez, 576 S.W.2d 456 (No. 16026, Tex.Civ.App.—San Antonio December 20, 1978). The evidence in this case, No. 16027, is the same as the evidence in No. 16026, and requires an af-firmance of the order overruling the plea of privilege, based on subdivision 9a, unless there is merit to the complaints of Leal and Milchem in this case which were not involved in No. 16026.

Insofar as subdivision 9a is concerned, the issues involved here which were not before us in No. 16026 are raised by appellants’ first four points complaining of the fact that the trial court erred in denying appellants separate venue hearings in the driver’s case and in this case. Appellants’ contentions may be summarized as follows:

1. By refusing to have separate hearings, the trial court gave plaintiffs in this case an undue advantage by allowing them to “ride the coattails” of plaintiffs in the driver’s case without being required to offer any evidence sustaining venue in Webb County as to Milchem and Leal. Appellants assert that the evidence which might be offered in the driver’s case “may not have been offered by [plaintiffs] in this ease.”

2. The trial court, by refusing to have separate hearings, required the attorney for Milchem and Leal to defend two lawsuits at the same time.

3. This case and the driver’s case were separate suits, bearing separate docket numbers. There was not a complete identity of parties, and this case involved subdivisions of Article 1995 (particularly subdivision 4), which were not involved in the driver’s case.

4. Leal and Milchem were prejudiced by the refusal to have separate hearings because, in defending against plaintiffs’ invocation of subdivision 9a in the driver’s case, they were forced to offer evidence of the negligence of the driver, with the result that Leal and Milchem, in effect, would be assisting plaintiffs in this case by showing negligence of the driver, thereby helping to establish a cause of action against the resident defendant in this case for the purpose of sustaining venue against Leal and Mil-chem under subdivision 4.

Under subdivision 4, plaintiffs in this case would discharge their burden by pleading and proving a cause of action against the resident defendant.

The hearing on the pleas of privilege filed by Leal and Milchem in this case was set at the same time as the hearing on the pleas of privilege filed by Leal and Milchem in the driver’s case. At the outset, Leal and Milchem insisted on separate hearings. The trial court pointed out that he understood that the same witnesses would testify in both cases, and that no useful purpose would be served by having the witnesses testify at one hearing in the morning and then return to repeat the same testimony in the afternoon. The court expressly stated that the two cases were not being “consolidated,” and when asked if the result of his ruling was that there would be a joint trial he replied that that was the “practical effect” of his ruling, but that he did not want to use the term “joint trial” because there might be a distinction between a “hearing” and a “trial.” The court said that he would hear all the witnesses any of the parties to the two cases cared to offer and would be “generous” in allowing the attorneys to cross-examine all witnesses. He then added that after hearing all of the testimony in the morning he would in the afternoon grant a motion that he take judicial notice of the testimony presented in the morning. After prolonged discussion, the court ruled that counsel for plaintiffs in the driver’s case would conduct direct examination first, after which counsel for Leal and Milchem would be permitted to cross-examine. Counsel for plaintiffs in the driver’s case would then conduct re-direct examination and then counsel for plaintiffs in this case would be permitted, if he wished, to examine the witness.

It is clear that the trial judge contemplated that attorneys for all parties in both cases would be permitted to examine witnesses, to call witnesses and to cross-examine so that all parties might develop their cases as they desired. During the discussion counsel for Leal and Milchem pointed out that in attempting to defeat plaintiffs’ attempt to sustain venue in Webb County in the driver’s suit, it would be forced to introduce evidence seeking to establish that the driver was negligent, and that in so doing it would necessarily be introducing evidence which would support the claim of plaintiff in this case that Leal and Milchem could be sued in Webb County under subdivision 4.

In answer to a direct inquiry from the bench, counsel for Leal and Milchem said that the evidence in both hearings would be the same. After further discussion, it was determined that the court would first hear the driver’s case, since that case had been filed prior to this suit.

We overrule the contention that the procedure followed prejudiced the rights of Leal and Milchem. In the face of the admission by Leal and Milchem in open court that if separate, hearings were held the evidence presented at each hearing would be the same, it is impossible to contend that separate hearings, with the second hearing consisting of a mere repetition of the testimony heard at the first hearing, would have produced a different result. We find nothing in the record to support the contention of Leal and Milchem that the procedure followed resulted in shifting the burden of proof from plaintiffs in this case to defendant.

The trial court filed no findings of fact or conclusions of law, and the order overruling the pleas of privilege does not recite that it is based on any particular subdivision of the venue statute. The testimony, as we have said, is sufficient to support findings that the suit could be heard in Webb County under subdivision 9a. Since Leal and Mil-chem do not contend that a separate hearing in this case would have resulted in different or additional testimony concerning the “venue” facts which must be established in order for plaintiffs to invoke subdivision 9a, there is no basis for holding that the error, if any, of the trial court in proceeding as it did requires a reversal. Reliance on subdivision 9a as the basis for overruling the pleas of privilege is justified under the testimony even if we disregard all evidence tending to show that the driver of the vehicle in which the deceased in this case was riding was negligent.

All of appellants’ other points challenge the sufficiency of the evidence to sustain venue in Webb County under other subdivisions of the venue statute. In view of our conclusion that the case was properly filed in Webb County under subdivision 9a, we need not consider whether the court erred in holding, if it did so hold, that subdivision 4, or any other subdivision, was applicable.

The judgment of the trial court is affirmed.

      . Under subdivision 4, if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. A plaintiff relying on this subdivision must allege and prove a cause of action against the resident defendant and must show that the party claiming his privilege is a proper party to the action against the resident defendant. 1 R. McDonald, Texas Civil Practice § 4.10.2 at 434-39 (rev. 1965).


author: McDONALD, Chief Justice.

text:
    Gareth W. WILEY, Appellant, v. Ruth E. WILEY, Appellee.
    No. 5972.
    Court of Civil Appeals of Texas, Waco.
    Dec. 28, 1978.
    Rehearing Denied Feb. 1, 1979.
    P. Otis Hibler, San Antonio, for appellant.

      J. R. McCracken, Bryan, Samuel D. Dib-rell, Dibrell, Dotson & Dibrell, San Antonio, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant (defendant) from judgment for appellee (plaintiff) for $14,691.68, which judgment was rendered on partial summary judgment decreeing defendant’s liability, and trial thereafter as to amount of money due plaintiff.

Plaintiff Ruth E. Wiley filed suit against defendant Gareth W. Wiley in March 1977 alleging plaintiff and defendant were divorced in September 1971; that plaintiff was awarded an undivided two-fifths interest in defendant’s military retirement pension which was community property of the parties; and that plaintiff has never received any of her share. Plaintiff prayed for partition of both the amounts past due and owing, and also her share of each future monthly payment defendant will receive, and for such further relief to which she may show herself entitled.

Defendant answered on May 16, 1977 by general denial.

On December 20, 1977 plaintiff filed motion for summary judgment as to liability of defendant; and for trial as to amounts due. Plaintiff attached her affidavit that she was awarded divorce from defendant in 1971 which decree awarded her an undivided two-fifths interest in defendant’s military retirement pension; that she had never received any part prior to filing this suit; that her share amounted to over $14,000. Attached to her affidavit was a verified copy of the divorce decree which reflects award to plaintiff two-fifths of defendant’s military retirement pay of $450. per month.

On December 28, 1977 defendant filed amended answer alleging plaintiff had in 1976 filed motion for contempt, reformation of divorce decree, and judgment for moneys due under the divorce decree, which was denied by the court, and that such constituted res judicata to all issues in the instant case.

Also, on December 28, 1977 defendant filed an unverified response to plaintiff’s motion for summary judgment, in which defendant denied allegations in plaintiff’s motion and affidavit.

And on January 3, 1978 defendant filed an unverified “plea in bar” to plaintiff’s suit which alleged plaintiff in 1976 filed motions for contempt, reformation of divorce decree, and for judgment, which motions were denied, and constituted res judi-cata and a bar to the present action. Attached to such plea in bar were unverified purported copies of plaintiff’s motions for contempt, to reform divorce decree, and for judgment filed in 1976 under the number of the 1971 divorce case; and an unverified purported copy of an order of the 45th District Court of Bexar County denying such motions.

The trial court rendered judgment on May 3, 1978 reciting that on January 3, 1978 came on to be heard plaintiff’s motion for summary judgment accompanied by affidavits and verified exhibits and the court granted plaintiff summary judgment that she recover against defendant two-fifths of all military retirement pension received by him since the date of the 1971 divorce of the parties through December 31, 1977. The judgment further decrees plaintiff’s entitlement to two-fifths of the gross amount of future retirement pay to be received by defendant. The judgment then recites that trial was had on the sole remaining issue as to the gross amount of retirement pay received by defendant from the date of the 1971 divorce through December 31, 1977 and found same to be $14,-691.68, for which amount judgment was rendered for plaintiff against defendant, plus interest and costs.

Defendant appeals on 4 points contending the trial court erred in rendering summary judgment as to liability (and overruling his plea in bar) because the 1976 order denying plaintiff’s motions for contempt, reformation of divorce decree and judgment, filed in the original divorce suit, where plaintiff sought exactly the same relief as in the instant suit, constitutes res judicata as to the instant suit.

Rule 166-A TRCP provides among other matters * * * “a summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages. * * * (and) * * * judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion * *

Plaintiff plead her entitlement from defendant of two-fifths of defendant’s military pension from the date of the 1971 divorce. The summary judgment record reflects: the affidavit of plaintiff to the same effect; verified copy of the 1971 divorce decree which decrees plaintiff undivided two-fifths interest in defendant’s military pension; and plaintiff’s affidavit that she has never been paid any of her vested share of such pension.

Defendant has not complied with Rule 166-A and has provided no summary judgment proof to substantiate his plea in bar of the asserted 1976 orders denying motions for contempt, reformation of decree, and damages. Defendant has no affidavit or sworn denials, and no verified or certified copies of motions or orders establishing the asserted plea of res judicata.

Plaintiff has established her entitlement to summary judgment, and defendant has not by any summary judgment proof denied same.

Defendant’s allegations as to res judicata constitute an affirmative defense to plaintiff’s cause of action and to preclude summary judgment for plaintiff must be proved up by summary judgment evidence, which was not done.

Defendant’s pleading and answer to plaintiff’s motion for summary judgment are not summary judgment evidence. Hidalgo v. Surety Savings and Loan Assn., Tex., 462 S.W.2d 540; Lancaster v. Wynnewood State Bank, (Tex.Civ.App., Waco) NWH, 470 S.W.2d 78.

And when facts entitling the moving party to summary judgment have been established, as here, the motion will not be denied merely because the opposite party has alleged matters in pleadings, which if proved, would require a different judgment be rendered. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948; Molsen v. Compania Industrial, (Tex.Civ.App., Waco) NWH, 394 S.W.2d 271; Watkins Motor Lines, Inc. v. Plantation Foods, Inc., (Tex.Civ.App., Waco) NWH, 485 S.W.2d 951.

The partial summary judgment as to liability was proper.

All defendant’s points and contentions are overruled.

AFFIRMED.