text:
    Donald Charles ANDERSON, Plaintiff-Respondent, v. Shirley Jean ANDERSON, (now DeGregorio), Defendant-Appellant.
    No. 48153.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 22, 1985.
    Grove Sweet, St. Louis, for defendant-appellant.
    Sanford J. Miller, St. Louis, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

This is an appeal from an order quashing the execution and garnishment for unpaid child support and from an order modifying husband’s obligation to pay child support. We affirm.

On September 14, 1979, the marriage of appellant, Shirley Jean Anderson and respondent, Donald Charles Anderson, was dissolved. Care and custody of the couple’s seventeen year old child, Vicky, was awarded to appellant. Respondent was ordered to pay $35.00 per week child support. At the time of the entry of the original decree, the parties stipulated that appellant was to continue to occupy the marital home with the child through June, 1981.

Respondent reoccupied the home in July, 1981. The child continued to stay in the home until July, 1983. Respondent ceased making child support payments during the period in which the child occupied his home.

On July 5, 1983, appellant sought execution on her child support judgment. Respondent filed a Motion to Quash Execution and Garnishment and a Motion to Modify Child Support. On the basis of the foregoing facts, the trial court concluded:

1. That the child had not at any time been emancipated but at all times remained in the legal custody of wife.
2. That the husband in the furnishing of the room and making available provisions, provided the child with the value of at least equal to the $35.00 per week child support, so that it would be “inequitable” to permit wife to recover the unpaid support, and,
3. That since the child had part time employment the award for child support was excessive.

Based upon those conclusions, the court quashed the execution and garnishment for unpaid child support and modified the decree to reduce respondent’s obligation to pay child support from $35.00 to $32.50.

Appellant raises one point on appeal. Appellant contends the trial court erred in granting respondent’s motion to quash execution and garnishment for the reason that the past child support constituted a debt owed by respondent to appellant which appellant had not consented could be paid by any means other than as specified in the decree. Appellant does not appeal the trial court’s order modifying respondent’s future child support obligations.

Generally, no credit is allowed for support paid other than as ordered by a divorce decree. Royall v. Legislation and Policy Division, 610 S.W.2d 377, 379 (Mo.App.1980). The basis for this rule is that the custodial parent has the privilege and responsibility to determine how the monies awarded for support are to be spent. Lieffring v. Lieffring, 622 S.W.2d 519, 520 (Mo.App.1981). However, equitable exceptions to this rule allow the father credit for direct support provided to the children with the express or implied consent of their mother. Stemme v. Stemme, 351 S.W.2d 823, 825 (Mo.App.1961).

In the case at bar, there was substantial evidence in which the trial court could have found appellant’s acquiesence.

Appellant expressly gave her consent to the minor child to reside with respondent. Appellant testified it was for the child’s benefit that she permitted her to continue living in the marital home. Additionally, during the two years the child was living with respondent, appellant never requested support payments. The order granting judgment credits to respondent rested on substantial evidence and was a correct application of law.

The judgment is affirmed.

GAERTNER and KAROHL, JJ., concur.


source: Caselaw Access Project

author: KAROHL, Judge.

license: Public Domain

text:
    George Steven LAIBEN, Petitioner-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 48173.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 22, 1985.

      Robert Gerard Kister, Pestus, for petitioner-appellant.
    Marilyn G. Ruemmler, Pros. Atty., Hills-boro, for defendant-respondent.
   KAROHL, Judge.

Petitioner-licensee filed an appeal for review of the revocation of petitioner’s motor vehicle operator’s license for a period of one year in the manner provided by Chapter 536, RSMo. on the authority of § 302.-311, RSMo. 1978. After a hearing where the prosecuting attorney appeared on behalf of the Director of Revenue, the court denied relief and petitioner-licensee appeals.

Petitioner received a “NOTICE OF LOSS OF DRIVING PRIVILEGE, MISSOURI DEPARTMENT OF REVENUE” printed form. The document bears the imprint of the seal of the Department of Revenue and directs the licensee to mail his license to the Driver’s License Bureau. The notice indicates that appellant’s privilege to operate a motor vehicle in Missouri has been revoked because appellant has received twelve or more points due to a second conviction of blood alcohol content in excess of ten-hundredths of one percent. § 302.302.1(8) RSMo Supp.1984. The Director of Revenue’s name is stamped at the bottom of the notice. The notice does not clearly reflect that the action of revocation was that of the Director of Revenue in his official capacity as opposed to an action of the Missouri Department of Revenue.

The petition is styled, “In the Matter of George Steven Laiben, Petitioner.” No other party is specifically designated. The caption indicates that Richard A. King, Director of Missouri Department of Revenue should be served. The petition alleges that “[o]n or about the 16th day of February 1983 the Department of Revenue sent Notice to Petitioner ... that Petitioner’s Missouri Driver’s License will be revoked, effective March 11, 1983.” It also alleges, “[t]hat said action by the Department of Revenue, is without authority at law.” Nowhere in the body of the petition is Richard A. King, Director of Missouri Department of Revenue specifically identified as a party. Reluctantly we conclude that the Director of Revenue has not been made a party to the petition.

It was held in Walsh v. Department of Revenue, 668 S.W.2d 648 (Mo.App.1984); Huffman v. Department of Revenue, 523 S.W.2d 107 (Mo.App.1975) and Shepherd v. Department of Revenue, 377 S.W.2d 525 (Mo.App.1964), that the Director of Revenue in his official capacity as a state officer has the ultimate duty and responsibility for the issuance, suspension and revocation of operator’s licenses. It is the director in his official capacity and not the Department of Revenue who is a necessary party to these proceedings. Walsh, 668 S.W.2d at 649; Shepherd, 377 S.W.2d at 527. In view of these decisions the style for a petition for review under Chapter 536, as provided in § 302.311, should be John Doe, Petitioner v. Robert Smith, Director of Revenue.

As a necessary party to the proceedings was not made a party to the action the trial court did not have jurisdiction. Matter of Mulderig, 670 S.W.2d 182, 184 (Mo.App.1984). Consequently, this appeal must be dismissed for lack of jurisdiction in the trial court.

PUDLOWSKI, P.J., and GAERTNER, J., concur.

      . Richard A. King acting in his official capacity was not listed as a party in the style of the case nor mentioned as a party in the body of the petition. The Notice of Appeal is styled, George Steven Laiben v. State of Missouri. However, at the time of the trial the judge identified the case as, George Steven Laiben v. Richard King, Director of Revenue. This statement is not sufficient to make Richard A. King a party to the case. See Rule 55.02 which requires that the title of the petition in a civil action name all of the parties.


author: CLEMENS, Senior Judge.

text:
    Dennis HAYMON, Movant, v. STATE of Missouri, Respondent.
    No. 48237.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.
    Toby H. Hollander, St. Louis, for mov-ant.
    Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Movant (hereafter “defendant”) appeals the summary denial of his Rule 27.26 motion.

Defendant had been indicted for capital murder, convicted of second degree murder and sentenced as a prior offender to life in prison. Affirmed on appeal, State v. Haymon, 616 S.W.2d 805 (Mo. banc 1981).

The motion court summarily denied defendant’s motion and he has appealed. By his motion defendant had alleged error because the state attempted to amend the capital murder charge to first degree murder. He contended that deprived the trial court of jurisdiction and deprived him of the right to know the specific charges against him.

The motion court ruled defendant’s point was conclusory and patently void. It held defendant knew he was charged with capital murder and so he could not complain of the second degree murder conviction on the ground the state attempted to reduce the charge from capital to first degree murder. As explained in State v. Haymon, 616 S.W.2d 305[4] (Mo. banc 1981) the court ruled:

“What defendant overlooks is that the memorandum, as discussed earlier, was a nullity with respect to accomplishing any change in the charge. Defendant remained charged with capital murder and it is well established that a second degree murder instruction may be given under a charge of capital murder. It is a lesser included offense.”

By his other point defendant contends the trial court erred in denying a continuance on the ground that on the day of trial two veniremen had read a biased newspaper item. The point was raised in neither the motion for new trial nor direct appeal. It is not now reviewable. Benson v. State, 611 S.W.2d 538 [1, 2] (Mo.App.1980).

Affirmed.

CRIST, P.J., and CRANDALL, J., concur.


text:
    Frances J. WARNER, Appellant, v. Richard C. WARNER, Respondent.
    No. 48293.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.

      W. Scott Pollard, Florissant, for appellant.
    Justin C. Cordonnier, St. Louis, for respondent.
   CLEMENS, Senior Judge.

Wife Frances Warner sued husband Richard Warner to dissolve their 40-year marriage. She appeals from the decree’s property and monetary provisions.

Wife here contends: The court erred in denying her a share of husband’s military pension, erred in finding husband’s inheritance from his father was personal rather than marital property, the division of marital property was unjust in view of the husband’s marital misconduct and the court erred in declining her claim for her attorney’s fees.

Marital background: Before husband’s army retirement the parties lived luxuriously. Their home was worth $87,000 and was opulently furnished. They also owned a camper home, two passenger cars and two motorcycles. Husband had an array of weapons, cameras and electronic equipment; he had inherited a mass of personalty from his father. They also owned a 50-acre Illinois farm and a lot in Arizona.

Wife first argues she was entitled to a share of his $700 monthly army pension. (This was in addition to $183 a month for husband’s permanent service-connected disability.) From this husband had assigned $400 monthly to credit unions to pay for home improvements and $140 monthly to repay a loan on the parties’ Illinois farm. This left him $160 a month plus his $183 disability pay his only income. In contrast wife’s monthly take-home pay was $470. Under federal law, 10 U.S.C. Section 1408(c)(1), a state court may treat retirement pay either as sole or marital property. Sink v. Sink, 669 S.W.2d 284[1] (Mo.App.1984). In view of wife’s having a home and greater earnings, and the homeless husband’s unemployment, we hold the trial court did not err in failing to award her any of his retirement pay.

As noted, during the marriage husband by will had acquired a mass of property from his father. Wife here contends this was marital property under R.S.Mo. Section 452.330. That statute excepts property “acquired by gift, bequest, devise or descent.” Wife argues that exception must be shown by clear and convincing evidence. Husband did so by documentary evidence. So, the statutory presumption was overcome, as held in Allen v. Allen, 637 S.W.2d 829[1, 2] (Mo.App.1982).

This brings us to wife’s challenge to the division of marital property. In dividing this the wife acknowledges the court awarded her property worth $40,000 and awarded husband property worth $30,000. She contends this inadequately punished husband for his misconduct. We note that neither party was morally pure. At husband’s request she had joined him at a “husband and wife incest club” and there she has sexual intercourse with other men. This off-set her claim of husband’s other sexual misconduct, based on inconclusive circumstantial evidence.

Wife’s last complaint is that the court erred in denying her an attorney fee. Two factors support the denial. First was testimony that the property awarded husband was not income-producing, and his only income was his meager retirement pay. In contrast, wife was fully employed. Second was that the wife twice declined to furnish the trial court’s requested affidavits; these to support her non-existence contention as to some items awarded her. In a dissolution case the trial court has broad discretion in granting or denying attorney fees. Gray v. Gray, 649 S.W.2d 908[3] (Mo.App.1983). In view of the two factors cited above, the trial court did not abuse its discretion.

We find no reversible error in any of the wife’s challenges.

Affirmed.

CRIST, P.J., and CRANDALL, J., concur.


text:
    Henry LUNNEMANN, James Spencer, and Anton Niemeyer, Trustees for St. Louis Hills Estate No. 2, Appellants, v. Karl and Donna HLAVATY, Respondents.
    No. 48427.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.
    Stephen H. Gilmore, St. Louis, for appellants.
    William F. James, St. Louis, for respondents.
   CLEMENS, Senior Judge.

Suit in equity to restrain construction of a fence.

Plaintiff subdivision trustees sought to restrain defendant home owners from building a five foot high ornamental fence around the back yard of their homesite, built to keep in their dog. Plaintiffs contended this violated a building restriction. The trial court denied the injunction and trustees appeal.

The facts are uncontroverted. Defendants described their building plans to their attorney and after he had considered the platted restrictions he advised them the proposed construction did not violate the restrictions. Plaintiff promptly had the fence built; this restraining action followed.

The fence enclosed the back part of defendants’ lot. It ran six feet inside the two sides of their back yard and one foot inside the rear side thereof. These three sections joined against the rear of defendants’ home.

Plaintiff trustees rely on an ordinance declaring “no fence ... shall be erected along the sides or rear line of any lot....”

“Restrictions on the free and untrameled use of land are not favored by the law and will be narrowly construed.”

Udo Siebel-Spath v. Construction Enterprises, 633 S.W.2d 86 [1-4] (Mo.App.1982).

The restrictive language here is the same as that recited in Pellegrini v. Fournie, 501 S.W.2d 564 [1, 2] (Mo.App.1973). There, plaintiff sought to restrain defendant home owners from building a fenced-in tennis court within the sides of their lot. The trial court there denied an injunction. In affirming our court ruled:

“It is likewise settled that restrictive covenants are to be strictly construed, are not to be extended by implication to include anything not clearly expressed in them. If there is substantial doubt of their meaning, such doubt should be resolved in favor of the free use of the property.”

We hold the trial court did not err in denying injunctive relief.

CRANDALL, P.J., and CRIST, J., concur.


author: PUDLOWSKI, Presiding Judge.

text:
    STATE of Missouri, ex rel. DIVISION OF FAMILY SERVICES, Assignee-Appellant, Karen Sue Ruble, Plaintiff-Appellant, v. Leonard William RUBLE, Defendant-Respondent.
    No. 48498.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 22, 1985.

      Richard Mark Goldstein, Cape Girardeau, for appellant.
    Leonard William Ruble, pro se.
   PUDLOWSKI, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of Washington County which sustained respondent’s motion to quash garnishment in the amount of $27,247.00 for past due child support payments.

Appellant Karen Sue Ruble (Ruble) and respondent Leonard William Ruble were divorced on April 5, 1976. The parties executed a separation agreement and property settlement which was incorporated in the decree, and which ordered respondent to pay $25.00 child support per week for each of the parties’ five children. On June 21, 1976, the parties signed a stipulation to reduce child support payments to $16.00 per child per week. On September 14, 1976, the parties executed a second stipulation reducing the support payments to $10.00 per child per week. Both stipulations were promptly filed with the circuit court, but no motions were made to amend the court order of $25.00 per child per week.

Ruble began receiving Aid to Dependent Children (ADC) benefits in June 1976. On July 6, 1977, she assigned her rights to accrued and future child support payments to the Division of Family Services (DFS) in behalf of the State of Missouri. In August 1977 the Child Support Enforcement Unit of DFS notified respondent that Ruble was receiving ADC benefits and had assigned her rights to child support to the State of Missouri. Based on the stipulations filed with the court, respondent was directed by DFS to pay $50.00 per week to it for the support of his children.

In February 1982 the Child Support Enforcement Unit (CSE) notified respondent that he was “not paying according to the court order.” In November 1983 respondent was notified again by CSE that his past due child support amounted to $2,602.00, based on the September 14, 1976 stipulation. The letter also informed him that the original court order had not been modified, and future collection efforts would be based on the eourt order of $25.00 per week per child as of March 1983 when the CSE Unit became aware of the non-modification of the court decree.

The CSE Unit ordered an execution and garnishment of respondent’s wages in the amount of $27,247.00 on January 30, 1984. This amount was based on the April 5, 1976 order of $25.00 per week per child. Respondent’s motion to quash the garnishment was sustained by the circuit court. The court agreed with DFS that legally the stipulations did not change or modify the original court order, but found in equity that all of the parties, including DFS, had acted in accordance with the stipulations and that DFS had waited too long to act on the arrearage.

DFS argues that the circuit court erred in sustaining respondent’s motion to quash the execution and garnishment because the stipulations between the parties did not modify the original support order and did not relieve respondent of his obligation to pay child support pursuant to that order.

We begin our analysis of this case with the premise that an award of child support pursuant to a divorce decree is for the benefit of the children. The paramount concern of the court in all child support cases is the needs of the children. The amount of support required and the ability of each parent to provide such support are questions which rest primarily within the trial court’s determination. Flynn v. Flynn, 604 S.W.2d 785 (Mo.App.1980). The trial court retains jurisdiction to modify a child support award upon a showing of a substantial change of circumstances which makes the existing terms unreasonable. See RSMo § 452.370.

It is well settled in Missouri that future child support obligations may not be altered by contract or agreement between the mother and father. Only a court has the power to alter future support payments. Holt v. Holt, 662 S.W.2d 578 (Mo.App.1983). Respondent’s error was in not submitting the stipulations for approval to the circuit court. The court was never given the opportunity to exercise its jurisdiction to examine evidence of changed circumstances and to determine whether a modification of the original support decree in accordance with the stipulation was reasonable. The circuit court’s determination that the stipulations did not have the legal effect of modifying the original decree is correct. We are urged to consider whether principles of equity demand a differing result.

The record before us reveals that the circuit court believed that the respondent was lulled into a false sense of security by the execution of the stipulations and the apparent acceptance of them by Ruble and DFS. A similar argument was raised in DeMoranville v. Tetreault, 654 S.W.2d 71 (Mo. banc 1983), where the issue was whether a father was entitled to have a child support judgment against him deemed satisfied pursuant to RSMo § 516.350. The Missouri Supreme Court noted in dicta that acquiescence has been applied as a bar only in rare instances where the parties have expressly agreed (citing Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974), and laches has never had the application requested by the father. DeMoranville, supra, at 73.

The case at bar, like Rodgers, involves an express agreement as to the payment of future child support. Although the stipulations were legally unenforceable, they were evidence of Ruble’s acquiescence to respondent’s payment of the lesser amount. Haynes v. Haynes, 648 S.W.2d 895 (Mo.App.1983). Accordingly, we hold that the equitable principal of acquiesence to apply and the respondent was obligated to pay $16.00 per week per child from June 21, 1976 to September 13, 1976, and $10.00 per week per child from September 14, 1976 to July 5, 1977.

In reply to DFS’s contention that respondent is liable from the date of the decree, respondent argues that when DFS acquired Ruble’s right to child support, DFS also accepted Ruble’s stipulations reducing the payments.

We find no evidence that DFS agreed to respondent’s reduced payments after Ruble assigned her child support rights to the State. Although respondent was erroneously informed by an investigator of the CSE Unit to continue to pay $50.00 per week to the State, it is well established that a governmental agency is not estopped by misrepresentation by its agents. Leimbach v. Califano, 596 F.2d 300, 304 (1979).

The state received the assignment of Ruble’s legal right to $25.00 per week per child pursuant to the divorce decree, and after the assignment it was entitled to collect from defendant the amount ordered in the decree. Section 454.415 RSMo.

While this result appears harsh, we bear in mind that it was the respondent’s failure to have the trial court approve the stipulations that caused his burden. “It is apparent that at worst respondent was simply misinformed by an employee of DFS concerning his liability under the court decree. Such action on the part of DFS’s employee, although regretable, will not give rise to an estoppel against the government.” Leimbach, supra at 305.

Therefore, we hold that as of July 6, 1977, the date of the assignment to DFS, the respondent was obligated to pay $25.00 per week per child.

Reversed and remanded to the circuit court for determination of the support ar-rearages due in conformance with this opinion.

GAERTNER and KAROHL, JJ., concur.


author: CRIST, Judge.

text:
    Norman LEVE and Mark Turken, A Partnership d/b/a Sunnydale Properties, Respondents, v. Walter DELPH and Vivian Delph, Appellants.
    No. 48587.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.
    Michael L. Lyons, St. Charles, for appellants.
    N. Scott Rosenblum, Mann, Roger & Wittner, St. Louis, for respondents.
   CRIST, Judge.

Defendants (tenants) appeal a summary judgment granted by the Circuit Court to plaintiffs (landlords) on tenants’ appeal of a trial de novo of landlords’ unlawful detain-er action. We dismiss the appeal for want of a final judgment.

Landlords filed a petition in Associate Circuit Court for unlawful detainer, requesting possession of the premises, damages, double rental value, attorney fees, and other relief. Judgment for landlords for possession, damages of $548.00, attorney fees of $200.00 and costs was granted on November 29, 1983. Tenants filed a timely appeal for a trial de novo in the circuit court, and filed an appeal bond of $1,370.00.

On February 16, 1984, landlords moved for summary judgment which was granted in an order of March 16, 1984 which stated “Plaintiffs’ Motion for Summary Judgment called, heard and sustained.” The appeal bond was ordered increased to $3,000.00 in the same order. Tenants again appeal.

Finality of the judgment of the court below is necessary for appellate jurisdiction. For a judgment to be final, it must dispose of all parties and all issues. Hagemann-Mullen Excavating Co. Inc., v. Fenlon, 670 S.W.2d 584, 585 [1, 2] (Mo.App.1984). The record discloses landlords were granted summary judgment, but it does not disclose what the judgment was for. Whatever relief landlords were to be granted was not revealed. As at least one issue remains to be determined, the judgment is not final. See Calvert v. Latimer, 670 S.W.2d 588, 590 (Mo.App.1984).

Appellants are reminded of the strictures of Rule 84.04(d). A list of forty-three citations, supporting one Point Relied On, is a “long list of citations” which “should not be included.” Id.

Appeal dismissed.

DOWD, P.J., and CRANDALL, J., concur.


author: LEWIS, Judge.

text:
    Kathryne B. INGRAM, Plaintiff-Appellee, v. Marie Crain PHILLIPS, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Nov. 9, 1984.
    Permission to Appeal Denied by Supreme Court Jan. 28, 1985.
    Fred E. Cowden, Jr., Nashville, for plaintiff-appellee.
    Claude Callicott, David Rizor, Nashville, for defendant-appellant.
   OPINION

LEWIS, Judge.

Plaintiff-appellee filed her complaint in which she alleged that defendant-appellant had converted to her own use antique automobiles and a Chris-Craft Cabin Cruiser which were owned by plaintiffs husband, Dr. Minyard Dee Ingram, Jr., at the time of his death.

Defendant answered that she was, in fact, the owner of the automobiles and the Chris-Craft by gift from Dr. Ingram during his lifetime.

Subsequent to an evidentiary hearing, the Chancellor found that the deceased had not made gifts of either the automobiles or the Chris-Craft to defendant and that, therefore, the deceased was the owner of the property at the time of his death.

The pertinent facts are as follows:

Plaintiff is the surviving spouse and executrix of the estate of her husband, Dr. Ingram, who died August 2,1981. Defendant, at the time of Dr. Ingram’s death and for several years prior to his death, was Dr. Ingram’s bookkeeper and, as found by the Chancellor, Dr. Ingram’s agent. In addition to being a physician, Dr. Ingram also had other interests, including dealing in antique automobiles. He took title to the automobiles both in his own name and in the name “Old Dominion Company,” a corporation which was wholly owned by the deceased but which had been dissolved some years before.

The property involved in this suit is two Rolls Royce automobiles and a Seagraves Fire Truck, titled in the name “Old Dominion,” and a Rolls Royce and Chris-Craft Cabin Cruiser, titled in the name of Dr. Minyard Dee Ingram.

By his will, Dr. Ingram provided, inter alia, that plaintiff was to receive all his clothing, jewelry, personal effects, automobiles, together with any policies of insurance on the automobiles and all other tangible personal property that he owned at the time of his death.

At the close of each calendar year, the defendant prepared for Dr. Ingram financial statements reflecting assets and liabilities. The last financial statement prepared by defendant for Dr. Ingram was for the calendar year 1980. The 1980 statement shows Dr. Ingram to be the owner of antique automobiles having a value of $120,-000.

Dr. Ingram insured the antique automobiles and the Chris-Craft Cruiser in his name individually. The insurance premiums on the property were paid by Dr. Ingram.

Dr. Ingram stored his antique vehicles at different locations over the years. He sometimes stored them at apartment houses that he owned and also stored vehicles at the defendant’s home. The vehicles which defendant claims were given to her by Dr. Ingram were stored at her home at the time of Dr. Ingram’s death and had been for sometime prior to his death.

Defendant claims ownership to a 1937 Rolls Royce which she says Dr. Ingram gave her as a Christmas gift in 1976. This vehicle was titled in the name “Old Dominion.”

She claims ownership of a 1937 Rolls titled in the name of M.D. Ingram which she says was a birthday gift from Dr. Ingram on April 20, 1975.

She claims ownership of a 1971 Rolls also titled in the name “Old Dominion” which she says Dr. Ingram gave her in 1976.

She claims Dr. Ingram gave her the 1929 Seagraves Fire Engine in December, 1975.

She claims ownership of the Chris-Craft which was purchased by Dr. Ingram in June, 1981. She insists that the Chris-Craft is hers because a 1967½ Rolls Royce was given to her by Dr. Ingram and that this Rolls was used in gaining ownership of the Chris-Craft. Dr. Ingram sold the 19671/2 Rolls Royce to a dealer in May, 1981. This was a three-way transaction in which Dr. Ingram sold the Rolls to a Chicago dealer and paid approximately $20,000 and proceeds from the sale of the Rolls to the owner of the Chris-Craft. Defendant insists that the $20,000 was her money. However, the record shows that Dr. Ingram’s check was used to pay the additional $20,000. Defendant insists that the 1967V2 Rolls was given to her on August 21, 1980.

Defendant has four bills-of-sale to the antique automobiles. Three of the four bills-of-sale under which she claims ownership do not bear the signature of Dr. Ingram. They are signed “Old Dominion Company” by defendant M.C. Phillips, as agent, and propose to transfer the ownership of the vehicles to defendant. The fourth bill-of-sale does purport to bear the signature of Dr. Ingram.

Defendant made no effort to transfer title to any of these vehicles during the lifetime of Dr. Ingram. Six days after Dr. Ingram’s death, she transferred title to the vehicles to herself through the office of the County Court Clerk in DeKalb County, Tennessee. She immediately sold the vehicles to an antique automobile dealer in Arkansas.

In addition to the bills-of-sale, defendant relies on the testimony of friends, her parents, the Arkansas automobile dealer, and defendant’s son in an attempt to show that Dr. Ingram made gifts to her. These witnesses state that Dr. Ingram had on occasions prior to his death told them that the automobiles belonged to the defendant and that he had given the automobiles to her.

The bill-of-sale which purports to bear the signature of Dr. Ingram was for one of the 1937 Rolls Royces. Involved in this transaction were two bills-of-sale which purported to transfer the 1937 Rolls. The notary testified that he had no independent recollection of notarizing either of the bills-of-sale or witnessing Dr. Ingram’s execution of the bill-of-sale. He testified that on other occasions he had notarized documents without having actually witnessed their signing, and in the past he had also notarized bills-of-sale which were totally blank containing only the purported signature of the owner.

One of the two bills-of-sale which purport to have been signed by Dr. Ingram states that it was executed on the_day of April, 1975. No consideration is shown, and the “April, 1975” was inserted in longhand. The second bill-of-sale is for the same vehicle and, on its face, appears to be almost identical to the first bill-of-sale. However, the second bill-of-sale shows a $9,000 consideration and the date of the transfer is typed in as April 21, 1975. The notary could give no explanation regarding the differences in the bills-of-sale, nor could he identify which bill-of-sale he notarized.

Defendant stated that she had possession of the vehicles both prior to the date the gifts were allegedly made and thereafter until the death of Dr. Ingram. She testified that on other occasions she had stored numerous vehicles belonging to Dr. Ingram at her home and that she had never made any charge for the storage. She also admitted that she had been his bookkeeper and that she had access to his books and records, both prior to and following his death.

Defendant has presented for our consideration seventeen issues. The first three complain that the Chancellor erred in admitting “hearsay” testimony. We deem it unnecessary to address these “hearsay” issues. This case is before us from a bench trial. Our review is de novo upon the record. Tenn.R.App.P. 13(d). We have reviewed the record and determined that there is ample evidence to support the Chancellor’s judgment without the consideration of the so-called “hearsay” testimony. We, therefore, hold that if the admission of this testimony was error, it was harmless and did not affect the judgment. Tenn.R.App.P. 36(b).

Defendant’s fourth issue complains that the Chancellor erred “in admitting into evidence the opinion of the alleged handwriting expert,” Pat Fuller. The Chancellor, in his Findings of Fact, stated: “This Court has determined that the expert testimony of Pat Fuller in this instance lacks sufficient weight to be accorded any probative value because of the facts upon which she based her opinion.” The Chancellor did not rely on Mrs. Fuller’s testimony in reaching his decision. Defendant has no grounds for complaint.

By issues five through eleven, defendant contends that the Chancellor erred in failing to find that she had shown by clear and convincing evidence that Dr. Ingram had made gifts to her of the automobiles and the Chris-Craft cruiser during his lifetime.

Here, the property alleged to belong to Dr. Ingram was in the possession of the defendant. Plaintiff had the burden of proof to show that the property belonged to Dr. Ingram. When plaintiff carried that burden, as she did, the burden then shifts to defendant who must show not by a preponderance of the evidence but by clear and convincing evidence that the property was given to defendant during Dr. Ingram’s lifetime.

“[I]n order to sustain a gift inter vivos or a gift causa Mortis, the evidence must be clear and convincing.” 38 Am.Jur.2d Gifts § 103, p. 903 (emphasis added); Atchley v. Rimmer, 148 Tenn. 303, 255 S.W. 366 (1923).

The Chancellor found “at all times prior to his death, evidence of ownership was held out by Dr. Ingram as his own.” The competent proof supports that finding: (a) Dr. Ingram executed, under oath, his personal financial statement reflecting that he was the owner of antique automobiles having a value of $120,000. These financial statements were prepared by the defendant. Dr. Ingram owned no antique vehicles other than those involved in this suit, (b) Dr. Ingram insured the property in his name and personally paid the insurance premiums, (c) He sold the 1967½ Rolls Royce in May, 1981, less than three months prior to his death. This is the same vehicle defendant contends was given to her by Dr. Ingram in April, 1980. Yet, she allowed Dr. Ingram to make the sale, (d) All of the vehicles were registered either in the name “Old Dominion,” a name used by Dr. Ingram to register property belonging to him, or in his name individually, (e) He depreciated at least one of the vehicles on his tax return after the date of the alleged gift. The tax return was prepared by defendant. (f) The additional $20,000 paid for the Chris-Craft was paid from funds belonging to Dr. Ingram.

Defendant also treated the property as being Dr. Ingram’s after the date of the alleged gifts. She prepared the financial statements showing that Dr. Ingram owned $120,000 worth of antique automobiles, even though she contends that Dr. Ingram had given all of the antique automobiles to her. She testified that he owned no other antique automobiles. She prepared Dr. Ingram’s tax return listing on that tax return one of the vehicles she claims Dr. Ingram had given to her as a gift.

While defendant claims she had bills-of-sale for the automobiles in her possession prior to Dr. Ingram’s death and one of those alleged gifts was made in December, 1974, she made no effort to transfer title until six days after Dr. Ingram’s death, approximately seven years after the first gift.

Defendant has failed to carry her burden of showing that Dr. Ingram made gifts to her of any of the vehicles during his lifetime.

Defendant contends by issue twelve that the Chancellor erred in denying her “Motion to alter or amend the judgment,” by issue thirteen, that the Chancellor erred in denying her “Motion to set aside the judgment and grant [her] a new trial,” and by issue fourteen, that she is “entitled by way of credit, setoff, counterclaim, equitable considerations and principles to a reduction of or a credit on the judgment rendered against her....”

She essentially seeks the same relief by each of these issues, i.e., a reduction in the amount of the judgment by allowing her credit for money she allegedly spent in preparing the vehicles for sale and for storage charges of “$5.00 per day per vehicle for a total of $44,200.00.”

Defendant did not seek recovery of expenses and storage charges at trial. Tenn. R.Civ.P. 13.01 provides:

A pleading shall state as a counterclaim any claim, other than a tort claim, which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, except that a claim need not be stated as a counterclaim if at the time the action was commenced the claim was the subject of another pending action.

The relief sought by defendant in her post-trial motion comes too late. The recovery she seeks is the subject of a compulsory counterclaim. She did not file her counterclaim in the trial court but took the position that she was the owner of the vehicles. It was not until after the Chancellor ruled counter to her insistence that she takes the position that the vehicles were Dr. Ingram’s and that she is entitled to recover for expenses incurred by her in getting the vehicles ready for sale and for the storage charges over the years. Her insistence that she is entitled to reimbursement comes too late.

Under issue thirteen, defendant argues that she is relying on “all of her motion for a new trial in this Court.” She makes no other argument concerning the motion for a new trial. Notwithstanding the fact that this broad assertion does not conform to Rule 6 of the Tennessee Court of Appeals, we considered each aspect of the motion and found it to be without merit.

Issues twelve, thirteen, and fourteen are without merit.

Defendant’s issues fifteen and sixteen complain that the Chancellor erroneously excluded evidence under the “Dead Man Statute,” Tenn.Code Ann. § 24-1-203.

She insists that plaintiff waived the provisions of the statute by taking her discovery deposition and “asking her in great detail about the transactions between her and Dr. Ingram and obtaining all the information that could possibly be obtained.” In support of her insistence, she cites Thomas v. Irvin, 90 Tenn. 512, 16 S.W. 1045 (1891). Thomas v. Irvin held that where the defendant took and filed the deposition of plaintiff after examining him as to transactions and conversations he had with the testator, the defendant waived the Dead Man Statute and that the evidence adduced became competent. The Supreme Court stated that to hold otherwise “would enable one party to search the conscience of his adversary, drag to light his papers and other evidences, and then repudiate the result if the experiment proves unsatisfactory.” Id. at 513, 16 S.W. at 1045.

Thomas v. Irvin was decided in 1891. We know of no statute or rule which allowed “discovery” at that time. Tennessee enacted “The Deposition Law of 1959” which provided for discovery. Tenn.R. Giv.P. 26 and 30 are identical to, but supersede, The Deposition Law of 1959. Tenn.R. Civ.P. 26.02 provides:

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) IN GENERAL. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Discovery is allowed in an effort to do away with trial by ambush. The purpose of discovery is to bring out the facts prior to trial so the parties will be better equipped to decide what is actually at issue. A litigant would be penalized for utilizing discovery if, by the acquisition of information under the discovery rule, it would render incompetent evidence competent.

The taking of discovery depositions does not under the circumstances of this case render competent evidence otherwise incompetent under Tenn.Code Ann. § 24-1-203.

We are of the opinion that the rule in Thomas v. Irvin is not inconsistent with our discovery rules. The deposition in Thomas v. Irvin was taken for use and not for discovery. As we have stated, we know of no statute or rule which allowed discovery depositions in 1891.

Issues fifteen and sixteen are without merit.

Defendant, by her seventeenth and last issue, insists that the plaintiffs suit is “barred in whole or in part by the three year statute of limitation contained in TCA § 28-3-105.”

This issue is without merit for two reasons: One, Tenn.R.Civ.P. 8.03 provides that the defense of the statute of limitations must be affirmatively pleaded in the trial court. Defendant has raised this defense for the first time on appeal. The defense is raised too late.

Two, “[t]his Court considers only such matters as were brought to the attention of the Trial Court and acted upon or preter-mitted by the Trial Court.” Cooper v. Queen, 586 S.W.2d 830, 834 (Tenn.App.1979) (citations omitted). The defense of the statute of limitations was not brought to the attention of the trial court or acted upon and pretermitted by the trial court.

We have considered each of the issues raised by defendant and find them to be without merit.

The judgment of the Trial Court is affirmed and costs assessed against defendant. The cause is remanded to the Chancery Court for the collection of costs and any further necessary proceedings.

TODD, P.J. (M.S.), and KOCH, J., concur.


author: MATHERNE, Retired Judge: MATHERNE, Retired Judge.

text:
    James BENNETT and Peggy Bennett, individually and as parents and next friend of Brian Bennett, Plaintiffs-Appellants, v. James Douglas SANDERS and Max Bennett, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    July 11, 1984.
    Rehearing Denied Sept. 6, 1984.
    Permission to Appeal Denied by Supreme Court Nov. 19, 1984.
    D.D. Maddox, Maddox, Ivey and Parish, Huntingdon, for plaintiffs-appellants.
    Charles T. Trotter, Huntingdon, for defendants-appellees.
   MATHERNE, Retired Judge:

While returning home from taking a load of hogs to market, the pickup truck of the defendant Max Bennett collided with the automobile of the defendant James Douglas Sanders resulting in personal injuries to the plaintiffs James Bennett and Brian Bennett who were riding in the pickup owned and driven by Max Bennett. The plaintiffs sued James Douglas Sanders and Max Bennett. The jury held in favor of the defendant James Douglas Sanders, which verdict was approved by the trial judge.

On appeal the only issue attempted to be raised is whether the trial judge erred in submitting to the jury the issue of whether Max Bennett and James Bennett were on a joint venture while marketing the hogs, thereby making any negligence of the driver Max Bennett imputable to the plaintiff James Bennett.

James Bennett is the son of Max Bennett and the father of Brian Bennett, a six-year-old minor. Max Bennett was a farmer and James Bennett worked for an electric cooperative and farmed part-time. The Ben-netts did not farm together, but they did exchange work and equipment as needed. On the day of the incident, Max Bennett had loaded five hogs in a trailer which he pulled with his pick-up truck. He then telephoned his son James Bennett and asked if James and Brian wished to ride with him to Huntingdon to sell the hogs. It was agreed that James and Brian would make the trip. When his father arrived James Bennett told him that he, James, had two hogs ready for market and asked to put them in the trailer with the other hogs. This was done, and the hogs were transported to market. James Bennett received the proceeds from the two hogs and Max Bennett received the proceeds from his five hogs. James Bennett did not pay Max Bennett any amount for hauling his two hogs to market, neither did he pay any expense of the trip. The evidence establishes that Max Bennett chose the route of travel to and from the market, he did all the driving and apparently exercised complete control of the vehicle. Upon returning from the market Max Bennett decided that he would first go to his house, unhook the trailer, and then take James and Brian to their home. At a point inside the city limits of McKenzie, Tennessee, Max Bennett was driving along Highway 22 and while attempting to make a left turn into Kencindot Road his pick-up, with trailer attached, was struck by the Sanders vehicle which was being driven in the opposite direction along Highway 22.

The plaintiffs James Bennett and Peggy Bennett as parents and next friends of Brian Bennett sue for damages due Brian Bennett for personal injuries. James Bennett sues for damages due to personal injuries and medical expenses for himself and his son Brian. Peggy Bennett sues for damages due to loss of consortium which cause is derivitive to the claim of James Bennett and will not be separately discussed but included in all references to the plaintiff James Bennett. The plaintiffs allege common law negligence on the part of James Douglass Sanders and also the violation of various state statutes and municipal ordinances.

The defendant Sanders by answer denied all material allegations of the complaint, and as positive defenses alleged that James Bennett was guilty of proximate contributory negligence wherein he failed to warn Max Bennett of the approach of the Sanders vehicle; that James Bennett, Max Bennett and Brian Bennett were at the time engaged in a joint enterprise so that the negligence of Max Bennett is imputed to James Bennett and Brian Bennett; and sought relief under the doctrine of sudden emergency. By cross-complaint the defendant Sanders averred that as result of the negligence of Max Bennett he sustained personal injuries, property damages to his automobile, loss of services of his wife who was a passenger in his automobile and injured in the wreck, and for medical expenses. The cross-complaint also alleged that Max Bennett violated various state statutes and municipal ordinances. In a separate lawsuit, Shelby Jean Sanders, wife of James Douglas Sanders, sued Max Bennett for damages due to personal injuries, which cause was consolidated with this lawsuit for trial.

Only the testimony of Max Bennett and James Bennett is before this court. The transcript of the evidence was apparently so restricted because the only issue attempted to be raised is the propriety of the trial judge charging the jury as to the law of joint venture. The trial judge filed a statement in the record that the only testimony on that issue was that of these two witnesses. We also note that the original charge of the trial court is not in the record before this court.

We first assume that the trial judge correctly charged all theories of all parties because when the original charge is not included in the record the presumption is that the trial court charged fully and correctly. Lane v. Keith, (1872) 61 Tenn. 189; Jackson Insurance Co. v. Sturges, (1873) 59 Tenn. 339; Railway Companies v. Foster, (1890) 88 Tenn. 671, 13 S.W. 694.

We hold that a six-year-old child, as a matter of law, has no capacity to enter into an agreement of joint venture involving the hauling of livestock in a trailer being pulled by a pickup truck owned by his alleged coadventurer. Under the rule heretofore stated, we hold that the trial judge charged the jury that the issue of joint venture would involve only Max Bennett and James Bennett. Therefore, the jury could not have found that six-year-old Brian Bennett was a coadventurer of Max Bennett and James Bennett and held against him under that theory.

In considering the defense of proximate contributory negligence, we note that the defendant Sanders made that allegation against only the plaintiff James Bennett. That allegation was not made against the minor plaintiff. We, therefore, conclude that the jury, under a proper charge by the trial court, did not find Brian Bennett guilty of contributory negligence and hold against him for that reason.

Therefore, under the record, we must conclude that the jury held for the defendant Sanders and against all three plaintiffs on the ground that the defendant Sanders was not guilty of any allegation of the complaint. There is, under the record, no other ground upon which the jury could have held against the six-year-old plaintiff, Brian Bennett. With that holding established, the parties have no standing to appeal to this court the issue of whether the trial judge should have charged the jury on the law of joint venture. That theory had no bearing on the finding of the jury that the defendant Sanders was free of fault in the matter.

There are other parties to this lawsuit and another lawsuit involved in the trial court. We have no knowledge of the status of those parties and that lawsuit, and we make no comment thereon. Under this record, any opinion we might render on the issue of joint enterprise would be advisory only, which action this court does not take.

This appeal is dismissed. The cost in this court is adjudged against the appellants for which execution may issue, if necessary.

NEARN, P.J. (W.S.), and TOMLIN, J., concur.

ON PETITION TO REHEAR

MATHERNE, Retired Judge.

The appellants James Bennett and Peggy Bennett by Petition to Rehear insist that this court erroneously held that the jury found in favor of the defendant James Douglas Sanders and against the individual plaintiffs, including the minor plaintiff, Brian Bennett. The basis for this argument is that Brian Bennett was not a party to the lawsuit as submitted to the jury.

In support of their petition, the plaintiffs allege that on July 1, 1981, a Joint Petition to Compromise a Minor’s Claim was filed in this cause asking for court approval of a settlement of the claims of the minor, Brian Bennett. They further allege that a Release Agreement was signed by the parents of the minor, and that the settlement was approved by an order of the court. The plaintiffs filed with this petition what they say are copies of the petition for settlement, the release agreement, and the order approving the settlement.

An examination of these documents reveals that settlement was affected as to the claims of the minor, Brian Bennett, as against Max Bennett only. There was no settlement shown as to the claims of Brian Bennett against the defendant James Douglas Sanders. Accepting the documents for what they purport to be, we adhere to our previous ruling that, under the record, the jury found in favor of the defendant James Douglas Sanders as against all plaintiffs, including the minor, Brian Bennett.

The petition to rehear is denied at the cost of the appellants.

NEARN, P.J. (W.S.), and TOMLIN, J., concur.


author: HIGHERS, Judge.

text:
    Rufus Delinus WHEELER, Plaintiff-Appellant, v. CITY OF MEMPHIS, Wyeth Chandler, Mayor, City of Memphis, Tennessee, Henry Evans, Chief Administrator, City of Memphis, Tennessee, and E. Winslow Chapman, Director, and Pat Adams, Permit Section, Memphis Police Department, Memphis-Shelby County Airport Authority and Civil Service Commission of the City of Memphis, Tennessee, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Nov. 13, 1984.
    Permission to Appeal Denied by Supreme Court Jan. 28, 1985.
    Edward Witt Chandler, Memphis, for plaintiff-appellant.
    Clifford D. Pierce, Jr., City Atty., E. Brady Bartusch, Deputy City Atty., Myron A. Halle, Jr., and Stephen D. Goodwin, Memphis, for defendants-appellees.
   HIGHERS, Judge.

The appellant, Rufus Delinus Wheeler, was employed as an airport security officer at the Memphis International Airport. He was authorized to carry a firearm pursuant to a commission issued by the Memphis Police Department. This certification to carry a weapon was a prerequisite to his employment as a security officer by the Memphis-Shelby County Airport Authority.

On October 17, 1979, while attempting in the course of his employment to arrest a taxi driver, the appellant drew his weapon in response to the driver’s brandishing a tire iron. A struggle ensued during which the pistol fired, and the taxi driver was struck by the bullet and killed. In May 1980 the appellant was exonerated by a grand jury of any criminal conduct.

On June 20,1980, an administrative hearing was held pursuant to notice by the Memphis Police Department to determine whether the appellant’s commission should be revoked. Following the hearing, the appellant was notified that his commission as a special officer was being suspended for a period of one year. On July 2, 1980, the Airport Authority advised the appellant that he was suspended from employment effective June 30, 1980, pending an appeal to the Director of Police. On July 17,1980, the Director of Police confirmed the decision of the administrative board. Thereafter, on July 22,1980, the Airport Authority notified the appellant of the termination of his employment on the basis that he no longer met the job requirement. There was no hearing conducted by the Airport Authority in connection with the termination of employment.

On August 5, 1980, the appellant gave notice of appeal to the Civil Service Commission; however, this matter was not heard due to the fact that appellant filed suit in the Chancery Court on August 12, 1980, and by consent of the parties the matter was dismissed upon agreement for a rehearing before the administrative board of the Memphis Police Department.

On February 19, 1981, the administrative board once again suspended appellant’s commission for a period of one year, retroactive to June 20, 1980. Once again the matter was appealed to the Director of Police, and once again on March 16, 1981, he confirmed the decision of the board. The Airport Authority again automatically terminated appellant’s employment, and on March 20, 1981, the appellant gave notice of appeal to the Civil Service Commission. The Civil Service Commission ruled on August 7, 1981, that the Airport Authority had acted with just cause in terminating the employment of the appellant because he no longer held a commission as a special officer which was a prerequisite to the job as a security officer. The Civil Service Commission also decided that it lacked jurisdiction to review the action of the administrative board of the Memphis Police Department.

On September 4, 1981, the appellant petitioned the Chancery Court for a writ of certiorari. All defendants except the Airport Authority moved to dismiss the petition for failure of appellant to file timely under T.C.A. § 27-9-102 for review of the decision of the Memphis Police Department. The Chancellor granted the motion and upheld the action taken by the Airport Authority.

The appellant brings this appeal and argues that the Civil Service Commission should have reviewed the action of the Memphis Police Department instead of limiting its review to the action of the Airport Authority. The Airport Authority contends that the Civil Service Commission’s determination that the Airport Authority acted with just cause is supported by the record. The remaining defendants maintain that the appellant is barred from review of the action of the Memphis Police Department because he did not petition for writ of certiorari within the sixty day limit provided in T.C.A. § 27-9-102.

The scope of review of the decision of the Civil Service Commission is whether the agency acted fraudulently, illegally or arbitrarily. Watts v. Civil Service Board for Columbia, 606 S.W.2d 274 (Tenn.1980). The commission did not act arbitrarily if there was material evidence to support the action taken. It is unquestioned that federal regulations required airport security officers to be authorized to carry firearms and that this was a condition of employment. When the appellant lost his commission and could no longer meet the job requirement, he was terminated by the Airport Authority. There is material evidence to support the action of the Civil Service Commission, therefore, in finding that the Airport Authority “acted with just cause” in the termination of the appellant.

It appears that the real question at issue is whether the ruling of the Memphis Police Department administrative board was correct, but we do not reach that issue until we determine whether the petition for review was timely filed. The appellant contends that he is not barred by T.C.A. § 27-9-102 from raising the propriety of the board’s ruling because that ruling did not become final until all administrative remedies had been exhausted, i.e., until the ruling had been appealed to the Civil Service Commission. The question therefore arises whether the police board’s ruling was reviewable by the Civil Service Commission. If not, and if that ruling was final, then appellant should have petitioned for writ of certiorari and his failure to do so within sixty days would preclude review. Fairhaven Corporation v. Tennessee Health Facilities Commission, 566 S.W.2d 885 (Tenn.App.1976).

The Civil Service Commission has jurisdiction to hear appeals by an employee relating to “dismissal, demotion, transfer to another county, suspension or lay off.” T.C.A. § 8-30-327(a). The action of the police board was not to dismiss, demote, transfer, suspend, or lay off the appellant. The board simply revoked his commission to operate as a special officer for a period of one year, retroactive to June 20, 1980. Reviews of boards and commissions “where not otherwise specifically provided” may be brought under T.C.A. § 27-9-101 et seq. Such review is by common law certio-rari, T.C.A. § 27-9-114, and it must be filed within sixty days from entry of the order or judgment. T.C.A. § 27-9-102.

Although the Airport Authority acted upon the police board’s suspension of the appellant’s commission, and the Airport Authority’s action was reviewable by the Civil Service Commission because it involved dismissal of an employee, it does not follow that the Civil Service Commission could therefore review the decision of the board in revoking appellant’s commission to carry a firearm. The administrative board’s decision did not of itself relate to the appellant’s employment status; consequently, it did not fall within the purview of the Civil Service Commission’s jurisdiction. If the administrative board acted arbitrarily, illegally or fraudulently in revoking appellant’s commission, its decision could have been overturned upon review by the court if filed within the sixty day period allowed by law. Once the time limitation expired, the board’s decision became final.

The petition for writ of certiorari was timely filed with reference to the action by the Civil Service Commission in reviewing the decision of the Airport Authority. At that point, however, appellant was limited to the question of whether the Airport Authority acted arbitrarily, illegally, or fraudulently in terminating his employment. The Civil Service Commission found that there was material evidence to sustain the decision of the Airport Authority, and we agree.

The ruling of the Chancellor is affirmed. Costs are adjudged against the appellant.

NEARN, P.J. (W.S.), and TOMLIN, J., concur.


author: SPEARS, Justice.

text:
    Dr. Thomas R. McKINLEY, et ux., Petitioners, v. Leon DROZD d/b/a Drozd Construction Company, Respondent.
    No. C-3215.
    Supreme Court of Texas.
    Jan. 9, 1985.
    Rehearing Denied March 6, 1985.
    Mackey & Zahn, Ken E. Mackey, Corpus Christi, Longley & Maxwell, Joe K. Long-ley, Austin, for petitioners.
    Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., Thomas D. Bracey, San Antonio, for respondent.
   SPEARS, Justice.

The issue in this case is whether a party claiming damages under the Texas Deceptive Trade Practices Act (DTPA), Tex.Bus. & Com.Code Ann. §§ 17.41-.63 (Vernon Supp.1984), and under Tex.Rev.Civ.Stat. Ann. article 2226 (Vernon Supp.1984) must receive a net recovery in the entire lawsuit to recover attorney’s fees, or whether any recovery, even though entirely offset by an opposing claim, is sufficient to sustain an award of attorney’s fees. The trial court awarded attorney’s fees to the petitioners, Dr. and Mrs. McKinley. The court of appeals disallowed the award because the petitioners did not obtain a net recovery. 670 S.W.2d 405. We reverse the judgment of the court of appeals and affirm the trial court.

Drozd, a general contractor, brought suit against the McKinleys to recover the balance due on a construction contract on the McKinleys’ new home, and to recover attorney’s fees under Tex.Rev.Civ.Stat.Ann. article 2226 (Vernon Supp.1984). The McKin-leys counterclaimed against Drozd alleging conversion, breach of contract, and several violations of the DTPA. The McKinleys also sought attorney’s fees under the DTPA and under article 2226 in connection with their contractual claim.

The case was tried before a jury, which found that the McKinleys owed Drozd $24,-836.71 under the construction contract, that Drozd owed the McKinleys $4150.05 for breach of contract in failing to deliver two rugs, and that Drozd owed the McKinleys $7500.00 in damages for a DTPA violation. Based on this verdict the trial court awarded Drozd a net recovery of $13,186.66 and awarded each party attorney’s fees of $30,-000.00 for the trial, $8000.00 for a successful appeal to the court of appeals, and $5000.00 for a successful appeal to this court. Finally, the court ordered all costs of court to be divided equally between the parties.

The court of appeals held that the McKinleys were not entitled to any attorney’s fees because they did not receive a net recovery. The trial court judgment as modified was affirmed, including the equal division of court costs between the parties.

The McKinleys bring to this court the sole issue of whether the court of appeals was correct in eliminating their attorney’s fees award because they did not obtain a net recovery in the lawsuit. We will address separately the claim under section 17.50(d) of the DTPA and the claim under article 2226.

Attorneys Fees Under the DTPA

Section 17.50(d) of the Business and Commerce Code provides that “[ejach consumer who prevails shall be awarded court costs and reasonable and necessary attorney’s fees.” This language is not entirely helpful as it does not answer the question of whether one must prevail only under his DTPA claim or must obtain a net recovery in the entire lawsuit.

The McKinleys’ primary argument in support of allowing the award of attorney’s fees is that to disallow the award would disrupt the legislative intent behind the DTPA to protect consumers, recognized by this court in Woods v. Littleton, 554 S.W.2d 662 (Tex.1977). Drozd primarily argues that a DTPA consumer whose recovery is entirely offset cannot be said to have prevailed, because the final judgment provides no relief to the consumer. Both sides cite decisions of the courts of appeals which they contend support their respective positions. This issue is one of first impression for this court, and several of the cases briefed by the parties are distinguishable; however, the following opinions have squarely addressed this issue.

In Guerra v. Brumlow, 630 S.W.2d 425, 430-31 (Tex.App.—San Antonio 1982, no writ), the San Antonio court of appeals, without elaboration, held that any recovery under the DTPA, even though entirely offset by a counterclaim, was sufficient to entitle a consumer to attorney’s fees. The Fourteenth court of appeals reached the opposite result in Widmer v. Stamps, 663 S.W.2d 875, 882-83 (Tex.App.—Houston [14th Dist.] 1983, no writ). That court specifically rejected the view of the Guerra court primarily on the grounds that the wording between the DTPA and Tex.Rev. Civ.Stat.Ann. article 2226 is so “strikingly similar” that the same result should be reached under each statute, and the parties in that case agreed that courts have declined to award attorney’s fees under article 2226 in the absence of a net recovery. The Widmer court acknowledged the argument that section 17.44 of the DTPA calls for liberal construction to protect consumers and to provide economical procedures to secure this protection, but held that the consumers in that case did not “prevail” because they did not obtain a net recovery.

In a more recent opinion, a different panel of the Fourteenth court of appeals rejected the requirement of a “net recovery” to obtain attorney’s fees under the DTPA. Building Concepts, Inc. v. Duncan, 667 S.W.2d 897, 904-05 (Tex.App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.). The Building Concepts court based its decision on the legislature’s mandate in section 17.44 to liberally construe the act to protect consumers. The court, while recognizing its disagreement with Widmer, declared that the legislature could not have intended that a successful claimant under the DTPA be denied attorney’s fees because the claim is offset by a claim of the other party.

The Corpus Christi court of appeals has twice expressed that attorney’s fees are not recoverable in the absence of a net recovery. In Birds Construction, Inc. v. McKay, 657 S.W.2d 514, 516 (Tex.App.—Corpus Christi 1983, no writ), the court stated in dicta the requirement of a net recovery to obtain attorney’s fees, and in the present case, the Corpus Christi court has reversed an award of attorney’s fees on that basis.

We hold the better view is to allow consumers to recover attorney’s fees under section 17.50(d) of the DTPA incurred in the successful prosecution of a claim for damages under the Act, even though the claim might be entirely offset by a claim of an opposing party. This is consistent with the legislative mandate to liberally construe the act to protect consumers from deceptive practices, and the legislative intent to provide consumers with an efficient and economical means to seek redress for those deceptive practices. Tex. Bus. & Com.Code Ann. § 17.44 (Vernon Supp.1984). In construing the language of the DTPA, the more sensible meaning of the word “prevail” is to prevail in a claim under the Act, rather than to obtain a net recovery on all claims joined in one lawsuit. As the Building Concepts opinion pointed out, suits against a general contractor over the construction of a home often involve large counterclaims. 667 S.W.2d at 905. We do not believe that the legislature intended to deprive these consumers of their attorney’s fees.

Drozd contends that because the net recovery rule has been followed in applying article 2226, the same rule should apply under the DTPA; however, the issue of DTPA attorney’s fees is not controlled by the construction of article 2226. Although there are similarities in the policy and intent behind these statutes, the wording of the statutes is different, and the statutes were enacted for different reasons, thus prompting our separate analysis of each.

Finally, Drozd points out that this court has decided that in calculating treble damages, offsets against DTPA recoveries should be deducted before trebling. See Durham v. St. John, 645 S.W.2d 261, 262 (Tex.1983); Smith v. Baldwin, 611 S.W.2d 611, 617 (Tex.1980). Therefore, Drozd argues that since a net recovery is required for treble damages, by analogy, it should be required for an award of attorney’s fees. The issue of calculating treble damages has not been preserved for our review, and whether to award attorney’s fees is a separate question. Our decision in Smith v. Baldwin rested upon the meaning of “actual damages” in section 17.50(b)(1), an expression which is not included in the attorney’s fees provision. Also, the policy behind granting the punitive award of treble damages is different than granting attorney’s fees, and this is particularly clear under the current version of the statute. The treble damage award is called for under certain states of culpability of the DTPA defendant, but the attorney’s fee award is given to all prevailing consumers and is not based on the culpability of the DTPA defendant, but on the need to provide an economical remedy for victims of the specified types of deceptive activities.

For the foregoing reasons, we hold that a consumer who is awarded actual damages under the DTPA should also be awarded attorney’s fees, even though the damage award is entirely offset by an opposing claim and the DTPA consumer receives no net recovery.

Attorney’s Fees Under Article 2226

The next question in this case is to determine whether a net recovery is needed to support an attorney’s fee award under article 2226. As Drozd demonstrates in his reply brief, the courts of appeals have uniformly denied attorney’s fees under this article in the absence of a net recovery. The earlier cases merely held that it was within the province of the trial court to deny attorney’s fees under the article. See Latham v. Dement, 409 S.W.2d 429, 434 (Tex.Civ.App.—Dallas 1966, writ ref’d n.r.e.); Johnny Morrow’s Wrecking Crew v. Slate, 368 S.W.2d 32, 33 (Tex.Civ.App.—Fort Worth 1963, writ ref’d n.r.e.); Paddock Engineering Co. v. Rife, 310 S.W.2d 594, 597 (Tex.Civ.App.—Fort Worth 1958, writ ref’d n.r.e.).

The rule was extended in L Q Motor Inns v. Boysen, 503 S.W.2d 411, 412 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n.r.e.) to hold a trial court in error for allowing attorney’s fees under article 2226 in the absence of a net recovery. The L Q Motor Inns court stated that the purpose of article 2226 is to encourage the settlement of out-of-court claims, and without elaboration, announced the net recovery requirement. Subsequent appellate decisions have followed the L Q Motor Inns rule without expressing any rationale other than citing previous cases in the L Q Motor Inns line. See, e.g., Hoffman v. Deck Masters, Inc., 662 S.W.2d 438, 441 (Tex.App.—Corpus Christi 1983, no writ); Greene v. Bearden Enterprises, Inc., 598 S.W.2d 649, 655 (Tex.Civ.App.—Fort Worth 1980, writ ref’d n.r.e.); Jon-T Farms, Inc. v. Goodpasture, Inc., 554 S.W.2d 743, 752 (Tex.Civ.App.—Amarillo 1977, writ ref’d n.r.e.).

During the time span of these decisions, article 2226 was amended several times. The most important change which seems to have gone unnoticed occurred in the 1977 amendment. Prior to that time, the statute, in pertinent part, provided that “if, at the expiration of 30 days [after presenting claim], the claim has not been paid or satisfied, and [the claimant] should finally obtain judgment for any amount thereof as presented for payment ..., he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees.” Act of May 17, 1971, ch. 225, § 1, 1971 Tex.Gen. Laws 1073. In 1977, the statute was amended to its present wording that “if, at the expiration of 30 days [after presenting claim], payment for the just amount owing has not been tendered, the claimant may ... recover in addition to his claim and costs, a reasonable amount as attorney’s fees.” Tex.Rev.Civ.Stat.Ann. article 2226 (Vernon Supp.1984). This change in the wording of article 2226 was noted in Figari, Graves & Gordon, Texas Civil Procedure, 36 Sw.L.J. 435, 468-69 (1982), and the Austin court of appeals has cited the article in questioning whether the L Q Motor Inns “net recovery” requirement is still effective. Esparza v. Nolan Wells Communications, 653 S.W.2d 532, 538-39 (Tex.App.—Austin 1983, no writ).

The earlier decisions, and L Q Motor Inns in particular, were decided under the language requiring the claimant to “finally obtain judgment” for some amount. While this wording was not totally clear, it could easily be construed to require a net recovery in the judgment resolving all claims and counterclaims. Under the present wording, however, all that is required to obtain attorney’s fees is a “just amount owing" not tendered within thirty days. While a favorable trial court judgment on the article 2226 claim is needed to establish that the claim is “just,” the amended language does not impose the requirement of a net recovery, because the justness of a claim within article 2226 is not dependent upon the outcome of other claims or counterclaims joined in the lawsuit.

We hold that the proper construction of article 2226 is to allow recovery of attorney’s fees incurred in prosecuting a just claim under the article, even if the amount of the claim is entirely offset by an opposing party’s claim. This is more consistent with the legislative intent to discourage a party from unnecessarily litigating and defending a just claim within article 2226. Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814, 819 (Tex.1970). In addition, the statute was formerly strictly construed; however, the legislature amended article 2226 to mandate that “[t]his Act shall be liberally construed to promote its underlying purposes.”

Accordingly, we disapprove of the language in the previously cited cases requiring a net recovery in order to obtain attorney’s fees under article 2226 or under the DTPA. The judgment of the court of appeals is reversed, and the trial court judgment is affirmed.

WALLACE, J., notes his dissent.

GONZALEZ, J., not sitting.

      . There has been some controversy between the parties as to whether the 1977 version or the current version of the DTPA would control this case; however, in terms of the question presented for our review, there is no substantive difference in the versions.


author: WALLACE, Justice. ROBERTSON, Justice, KILGARLIN, Justice,

text:
    Bobby NEAGLE, Petitioner, v. George C. NELSON, M.D. et al., Respondents.
    No. C-2576.
    Supreme Court of Texas.
    Jan. 30, 1985.
    Rehearing Denied March 6, 1985.
    Phillip Brown, Amarillo, for petitioner.
    Paul M. Green, San Antonio, James H. Robichaux and Ben A. Donnell, Corpus Christi, for respondents.
   WALLACE, Justice.

This appeal presents an attack on the constitutionality of the limitations provision in the 1977 Medical Liability Act. Bobby Neagle filed this malpractice action against Dr. George C. Nelson, Dr. Roy J. Hotz and two nurses, Nancy S. Kieschnick and Linda N. White. He alleged that a surgical sponge had been left in his abdomen during an appendectomy in which the respondents had participated. Each respondent moved for summary judgment on the ground that Neagle’s claim was barred by a two-year statute of limitations. TEX.REV.CIV. STAT.ANN. art. 4590i, § 10.01. The trial court granted their summary judgments and the court of appeals, with one justice dissenting, affirmed. 658 S.W.2d 258. We reverse the judgment of the court of appeals and remand this cause to the trial court.

Neagle’s appendectomy was performed on December 9, 1977, at the Kleberg County Hospital, Kingsville, Texas. He was discharged from the hospital one week later. Dr. Nelson last examined Neagle within a few weeks of his discharge; however, the other respondents did not see Neagle after his discharge from the hospital. Discovery of the sponge occurred in January, 1980, more than two years after the appendectomy, when, after feeling a mass in his abdomen, Neagle submitted to exploratory surgery.

Neagle alleged that the surgical sponge had been left in his abdomen during the operation and that it was impossible for him to discover the sponge until more than two years after the surgery. We presume for purposes of appellate review that Nea-gle’s allegations are true. See, Bayouth v. Lion Oil Co., 671 S.W.2d 867 (Tex.1984).

The action of the trial court in granting Nelson’s motion for summary judgment was based upon the two-year statute of limitations set forth in Art. 4590i, § 10.01. This statute provides:

Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

/"This statute purports to establish an abso-I lute two-year statute of limitations for L Neagle’s claim. In Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984), we held that TEX. INS.CODE ANN. art. 5.82, § 4 (repealed), predecessor to Art. 4590i, § 10.01, was unconstitutional insofar as it cut off a cause of action before the Nelsons could have known that their son had Duchenne Muscu-1 lar Dystrophy. We have likewise declared l unconstitutional that part of Art. 4.82, § 4 relating to minors. Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). Both cases were decided on the basis of the open courts provision of the Texas Constitution. TEX. CONST. Art. I, § 13.

It. is Neagle’s contention that Art. 4590i, § 10.01, as applied to his cause of action, also violates the open courts provision. We r agree. The open courts provision of our Constitution protects a citizen, such as Neagle, from legislative acts that abridge his right to sue before he has a reasonable opportunity to discover the wrong and .bring suit.

We reverse the judgment of the court of appeals and remand this cause to the trial court.

GONZALEZ, J., not sitting.

ROBERTSON, Justice,

concurring.

I agree fully with the majority opinion of the court in this cause. I must, however, respectfully disagree with the conclusions stated in Justice Kilgarlin’s concurrence.

A concurring opinion can perform a useful function in explaining or supplementing opinions, providing guidance for both bench and bar. I have used this vehicle before, when the majority opinion deserved further explanation or could be justified on different legal grounds. See, e.g., Nelson v. Krusen, 678 S.W.2d 918, 925 (Tex.1984) (Robertson, J., concurring); Jensen v. Jensen, 665 S.W.2d 107, 110 (Tex.1984) (Robertson, J., concurring).

It is certainly possible that the views so ably expressed in Justice Kilgarlin’s concurrence may, in some future case, become the majority opinion of this court. The questions addressed, however, are extremely complex. I fear that without additional explanation courts and litigants might mistakenly conclude that this court has already arrived at a firm consensus on these issues. The purpose of this concurrence is solely to demonstrate that there is at least one other plausible viewpoint. If and when the issues are raised directly in an appropriate case, further briefing and creative advocacy may reveal even more — and better — alternatives.

One question remaining for this court’s future consideration is whether the legislature has abolished the “discovery rule” of Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). It is suggested that “the clear intent of the legislature” in passing art. 5.82 Tex.Ins.Code Ann. and Tex.Rev.Civ.Stat. Ann. art. 4590i was “to overrule Gaddis v. Smith.” 685 S.W.2d at 14 (Kilgarlin, J., concurring).

As I have pointed out once before, Nelson v. Krusen, 678 S.W.2d 918, 928 (Tex.1984) (Robertson, J. concurring), legislative history is not the beginning point for analysis of a statute. “It is the duty of courts to construe a law as written, and, if possible, ascertain its intention from the language used therein_” Government Personnel Mut. Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525, 529 (1952). I am not convinced that the plain language of art. 4590i manifests any intent to abrogate the “discovery rule.” Without an initial showing of some ambiguity or conflict in statutory language, it is not appropriate to inquire into the possible motives the legislature might have had in drafting the act. Board of Ins. Comm’rs v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 909 (1944). For this reason, I view the “discovery rule” issue as an open question, and remain amenable to persuasion.

I am even more troubled by the suggested use of an “analogy” to workers’ compensation law to answer the question of what a permissible delay for a malpractice plaintiff might be. As a method of reasoning, analogy draws its strength from similarity. It is difficult to perceive any relevant similarity between development of the test in Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372 (1948) and the task that would confront the Texas Supreme Court in medical malpractice.

On the other hand, there are numerous distinctions. For example, in Hawkins the court sought diligently to follow the letter of a limitation statute; this court has constitutionally invalidated the “analogous” malpractice statute. Further, the statute in Hawkins provided only thirty days for giving notice of injury, as opposed to two years under the “analogous” statute considered here, a factor that must surely have flavored decisions on “good cause” for delay in workers’ compensation cases. Compare Tex.Rev.Civ.Stat.Ann. art. 8307 § 4a with Tex.Rev.Civ.Stat.Ann. art. 4590i §§ 4.01, 10.01. Perhaps most important, while the Hawkins court operated within the context of the workers’ compensation system, a statutory alternative to the common law of torts, the court today, having invalidated the statute as it applies to a particular plaintiff, operates within the familiar arena of common law and equity.

The last observation suggests one easy alternative to a strained analogy to workers’ compensation law. While the malpractice limitations period may be unconstitutional as applied to a particular case, principles of common law and equity remain. This court has previously recognized that even where a statutory limitation period is not applicable, the equitable doctrine of laches may nonetheless operate to prevent the assertion of a stale claim. See, e.g., City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex.1964).

A further alternative to the workers’ compensation analogy would exist if this court were to find the language of the statute consistent with the continued existence of the “discovery rule.” Quite simply, the statutory two-year period would run from the date of discovery, since the statute would not be unconstitutional as applied.

Other and better legal and equitable theories may well exist. The purpose of this concurrence was not to catalogue and weigh the merits of all possible answers, but rather to demonstrate that the questions, in my opinion, remain open.

KILGARLIN, Justice,

concurring.

Because there are questions that the court opinion leaves unanswered, I find it necessary to write a concurring opinion. Hopefully, it will aid our state’s bench and bar in resolving questions in what is now an imprecise area of the law.

We have held today that article 4590i, Tex.Rev.Civ.Stat.Ann., as applied in this case violates our Constitution's open courts provision. Tex. Const, art. I, § 13. Our holding is based upon the assumption that Neagle reasonably should not have known of his injury during the period of limitations. If, upon retrial, however, this fact is controverted, it should be Neagle’s burden to establish this fact because he is the party challenging the constitutionality of this statute. Robinson v. Hill, 507 S.W.2d 521 (Tex.1974); Smith v. Craddick, 471 S.W.2d 375 (Tex.1971).

There is also a question of the length of time Neagle has in which to file suit after discovery of his injury. We did not discuss this in Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984). Nór is this question discussed in the court’s opinion. In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), this court adopted the standard for medical malpractice cases involving a physician leaving a foreign object in a patient’s body. We held that the statute of limitations did not begin to run until such time as the patient discovered, or reasonably should have discovered, the foreign object. But, is Gaddis v. Smith still viable? To answer that question, one must examine the language of the statute. A cursory reading of article 4590i, § 10.01, is subject to but one interpretation, and that is all malpractice actions shall be brought within two years of the tort or date of last treatment. But, if that language is unhelpful, we must look to the legislative intent behind the enactment of article 4590L The Medical Professional Liability Study Commission, created by the 64th Legislature, found that one of the purposes of art. 5.82, Tex.Ins.Code Ann. (the predecessor legislation enacted as an interim measure pending the commission report) was to abolish all limitations exceptions “previously carved out by the courts.” Report at 11-12.

I must conclude, therefore, that the clear intent of the legislature was to overrule the Gaddis v. Smith holding that limitations did not begin to run until after discovery of the foreign object. To the extent that the legislative enactment is constitutional and remains unchallenged, this court must accommodate the legislative intent. Therefore, it is quite obvious that we cannot now reinstate a limitations period that would allow for suits to be filed within two years after the date of discovery.

But, if we do not allow two years after discovery in which to file suit, what is a permissible delay? The most apt analogy to discovery after limitations has run can be found in worker’s compensation law, where if a claimant has good cause for a late filing of his claim, he is not barred from asserting that claim. Because “good cause” was not defined by statute, this court established a test for determining its existence. That test is whether the claimant prosecuted his claim with that degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances. The determination of diligence was held to be ordinarily a question of fact, only to be determined against a claimant as a matter of law, when the evidence, construed most favorably for the claimant, admitted no other conclusion. Hawkins v. Safety Casualty Co., 146 Tex. 381, 384, 207 S.W.2d 370, 372 (1948). We also said in Hawkins that “a reasonable time should be allowed for the investigation, preparation and filing of a claim after the seriousness of the injuries is suspected or determined. No set rule could be established for measuring diligence in this respect. Each case must rest upon its own facts.” 207 S.W.2d at 373.

In my opinion, the standard used in worker’s compensation cases is a proper standard to adopt in medical malpractices cases where discovery could not occur within two years of the tort or last treatment. Therefore, where a question exists as to the reasonableness of delay before filing suit after discovery of the defect or injury, the following issue should be submitted to the jury: “Do you find from a preponderance of the evidence that after discovering the injury (defect), plaintiff prosecuted his claim and suit with that degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances?”

I agree with the majority that article 4590i as applied in this case violates the open court’s provision. If a person could not have reasonably discovered his injury within the limitations period, then his action cannot be barred. The court has chosen not to discuss the length of time Nea-gle has in which to file suit after discovering the injury. I have attempted to provide an answer to that question. I join in reversing and remanding this case for further proceedings on the merits.


author: ROBERTSON, Justice.

text:
    W.L. RAMSEY, Petitioner. v. GENERAL MOTORS CORPORATION, Et Al., Respondent.
    No. C-3181.
    Supreme Court of Texas.
    Jan. 30, 1985.
    Rehearing Denied March 13, 1985.
    Bill F. Griffin, Jr., Center, for petitioner.
    Bankhead & Davis, Tom Bankhead, Carthage, Zeleskey, Cornelius, Rogers, Hallmark & Hicks, Kenzy D. Hallmark, Lufkin, for respondent.
   ROBERTSON, Justice.

This is a suit brought under the Deceptive Trade Practices — Consumer Protection Act as it existed prior to the 1979 Amendments. W.L. Ramsey sued General Motors Corporation and Bill Hancock Chevrolet, Inc. for damages arising from the purchase of a defective pickup truck. Hancock filed a cross-action against GMC for indemnification. The trial court rendered judgment that Ramsey recover from GMC and Hancock, jointly and severally, the amount of $5,880 plus attorney fees, and that Hancock recover full indemnity from GMC. In a published opinion, the court of appeals reversed the judgment and remanded the cause for a new trial. 669 S.W.2d 824. We affirm in part the judgment of the court of appeals, and we reverse and render in part.

Ramsey sought damages for breach of implied warranty of merchantability under the provisions of section 17.50 of the DTPA, Tex.Bus. & Com.Code Ann. The trial was to a jury which found that the truck which Ramsey purchased from Hancock was defective and that it was not fit for the ordinary purposes for which such vehicles are intended. The jury also found that the vehicle had a market value without the defect of $7,960 and a market value with the defect of $6,000. The trial court trebled the $1,960 of actual damages and rendered judgment for Ramsey in the amount of $5,880 plus attorney fees.

On appeal, General Motors and Hancock challenged the trial court’s refusal to submit the following special issue:

Do you find from a preponderance of the evidence that the defendant cured the defect in the vehicle, if any, before Plaintiff, W.L. Ramsey, filed suit?

The court of appeals reasoned that section 17.50A(3) of the pre-1979 DTPA precluded an award of treble damages if the defect was in fact cured before the suit was filed. The court therefore held that the trial court erred in refusing to submit the requested issue.

In section 17.50A(3), the legislature intended to provide a defense to treble damages for defendants who attempt to cure the defect. Woods v. Littleton, 554 S.W.2d 662, 671 (Tex.1977). However, this defense of “cure” is an affirmative défense which the defendant must plead and prove. Tex.R.Civ.P. 94; see Ridco, Inc. v. Sexton, 623 S.W.2d 792 (Tex.App.—Fort Worth 1981, no writ).

General Motors pleaded “cure” as an affirmative defense, but Hancock merely filed a general denial. Although Hancock introduced evidence of cure, the trial court refused to submit the requested special issue. The refusal to submit a special issue in this case is not error because the issue was not raised by the pleadings. Matthews v. General Fire & Life Assurance Corp., 161 Tex. 622, 343 S.W.2d 251, 255 (1961). Therefore, the trial court’s refusal to submit the special issue was not error as to Hancock.

As to Ramsey’s claim against Hancock, we reverse the judgment of the court of appeals and affirm that of the trial court. We affirm the judgment of the court of appeals in that Ramsey’s claim against GMC and Hancock’s cross-claim against GMC are remanded for new trial.


text:
    Eddie JACKSON, Jr., Petitioner, v. GRANITE STATE INSURANCE COMPANY, Respondent.
    No. C-3202.
    Supreme Court of Texas.
    Jan. 30, 1985.
    Rehearing Denied March 6, 1985.

      Jeff B. Badders, Nacogdoches, for petitioner.
    Tommy Allison, Longview, for respondent.
   ROBERTSON, Justice.

This is a workers’ compensation case. Eddie Jackson was the plaintiff; the sole issue was the extent of disability.

The trial of this cause was conducted prior to adoption of the new Rules of Evidence. At trial, and over proper objection, evidence was admitted that Jackson’s sole medical witness had been convicted of a felony, dispensing non-narcotic drugs “not in the usual course of professional practice.” 21 U.S.C. §§ 841(a)(1), 845(a). The record demonstrates that the fact of this conviction was used effectively to impeach the witness. The jury returned the equivalent of a take-nothing verdict, and Jackson appealed.

The court of appeals, in an unpublished opinion, held that under the law in effect at the time of trial, the felony conviction was inadmissible, since the crime did not involve “moral turpitude.” We agree. See generally Landry v. Travelers Ins. Co., 458 S.W.2d 649 (Tex.1970). The court, however, held that the error was harmless, since retrial would be governed by the new rules, and under Tex.R.Evid. 609(a) evidence of felony convictions is generally admissible. Reasoning that the error was cured by subsequent changes in the law, the court affirmed.

Jackson filed a motion for rehearing indicating that the medical witness had successfully completed probation. Under Tex. R.Evid. 609(c), he argued, the conviction would still not be admissible. In an additional opinion on rehearing, the court of appeals rejected Jackson’s argument, reasoning that a final conviction followed by probation was not a situation contemplated by the rule, and that even if it were, the evidence of successful completion of probation could not be considered by the court when introduced on appeal.

The language of Rule 609(c) is clear and dispositive. It provides, in relevant part, that “[e]vidence of a conviction is not admissible under this rule if ... probation has been satisfactorily completed for the crime for which the person was convicted....” Tex.R.Evid. 609(c).

The court of appeals’ secondary rationale, that evidence of successful completion of probation could not be considered, also requires little discussion. The trial record included a copy of the probation order and testimony that at the time of trial the witness was making satisfactory progress. The possibility that the -witness would have completed probation before retrial was evident from a comparison of the record with a calendar. Even had this not been so, the court of appeals could not ascertain with any confidence that none of the Rule 609 exceptions would be applicable on retrial. The conclusion that the evidence would have been admitted again is therefore unsupported. The analysis simply does not rise to the standard set by this court in a similar case, that the error complained of be “an injury that cannot be repaired by another trial.” Galveston, H & S.A. Ry. Co. v. Jackson, 93 Tex. 262, 54 S.W. 1023, 1024 (1900).

The judgments of the courts below are therefore reversed, and the cause is remanded for a new trial.