author: JUNELL, Justice.

text:
    SENTRY INSURANCE COMPANY, et al, Appellants, v. RADCLIFF MATERIALS OF TEXAS, INC., Appellee.
    No. C14-84-503CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 14, 1985.

      James G. Worley, Winstead, McGuire, Sechrest & Minick, Dallas, for appellants.
    Joe S. Maida, Houston, for appellee.
    JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Justice.

This suit was brought against Sentry Insurance Company (Appellant), the surety on an original contractor’s bond, by Rad-cliff Materials of Texas, Inc. (Appellee), the supplier of materials to subcontractor, Loma Equipment Company, on a parking lot construction project. Appellee recovered a judgment in the amount of $57,-530.69, plus interest and attorney’s fees, against the Surety. We reverse and render.

On September 15,1981, Loma Equipment Company, Inc. (Loma), a subcontractor, and Environmental Equipment Corporation (Environmental), the original contractor, entered into a contractor agreement for construction of employee parking facilities for Browning-Ferris, Inc. (Browning-Ferris). Before it began work on the project, Loma applied to Appellant for the issuance of a surety bond. On September 16, 1981, Appellant executed and issued a bond entitled “Performance and Payment Bond” naming Loma as Principal, Environmental as Obli-gee, and Sentry Insurance as Surety. The bond contained the following clause (referring to Loma as Contractor and Environmental as Company):

If the above Contractor, his heirs, executors, administrators, duly qualified successors and assigns shall do and properly perform the matters and things in said contract set forth and specified to be by the said Contractor kept, done and performed, at the time and in the manner in said contract specified, and shall pay over and make good and reimburse to the said Company, all loss and damages which said Company may sustain by reason of the failure or default on the part of said Contractor, then this obligation shall be null and void, otherwise to be and shall remain in full force and effect.

In December 1981 and January 1982, Ap-pellee supplied building materials to Loma for use in building the parking lot for Browning-Ferris. Upon Loma’s failure to timely pay Appellee for the construction materials, Appellee sent notices of the debt to Browning-Ferris Industries, Inc. (the parent corporation of Browning-Ferris, Inc.) and to Appellant. On June 9, 1982, Appellee filed a mechanic’s and material-men’s lien on property owned by Browning-Ferris Industries, Inc. It then initiated this action against Loma, George L. Nyfeler, Jr., a guarantor of Loma’s indebtedness, Browning-Ferris Industries, Inc., and Appellant, seeking to recover the amount due Appellee. Following the entry of an Interlocutory Summary Judgment against Loma for the sums due, Loma’s guarantor filed a Notice of Bankruptcy with the Court, leaving only Browning-Ferris Industries, Inc. and Appellant in the case. A non-jury trial was held on May 15, 1984. On June 7, 1984, the court ordered that Appellee take-nothing against Browning-Ferris Industries, Inc., while ordering that it recover from Appellant $57,530.69, plus interest and attorney’s fees. Appellant has perfected its appeal from this judgment.

Before addressing Appellant’s points of error individually, we must dispose of Appellee’s threshold complaint that Appellant failed to lay the proper predicate in the trial court for raising his “no evidence” points of error on appeal, because Appellant’s Motion for Instructed Verdict did not state the specific grounds for the motion as required by TEX.R.CIV.P. 268. We cannot support Appellee’s contention. In Bluebonnet Express, Inc. v. Employers Insurance of Wausau, 651 S.W.2d 345 (Tex.App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.), this court held that where in a non-jury case, the court is made aware of severe limitations on the probative value of the evidence presented at trial, no predicate-laying motions need be filed in the trial court before or after judgment in order to assert “no evidence” points on appeal. In the case before us, Appellant did, in fact, make a “predicate-laying motion” when it moved for an instructed verdict based on the fact the bond was not a Hardeman Act bond on its face. Whether or not the motion was sufficiently specific to meet the requisites of TEX.R.CIV.P. 268 is an issue we need not decide. The motion adequately apprised the court of the deficiencies in the evidence regarding the validity of the bond so as to allow Appellant to raise the issue on appeal.

In points of error one and two, Appellant contends the trial court erred in rendering judgment against it because there was no evidence that the mandatory requisites of a Hardeman Act bond were met. We agree. A review of the Findings of Fact and Conclusions of Law shows that the trial court treated the bond as a Harde-man Act bond. The Hardeman Act provisions set out a general statutory scheme whereby a payment bond, executed by an original contractor, is substituted for whatever other relief might be obtained by subcontractors and those furnishing materials and labor against the owner and his property. Fidelity & Deposit Co. of Maryland v. Felker, 469 S.W.2d 389 (Tex.1971); also see TEX.PROP.CODE ANN. § 53.201 (Vernon Supp.1984). When the bond is properly executed and recorded, the owner is not liable to derivative claimants. Felker, 469 S.W.2d at 390.

Section 53.202 of the Property Code provides that a bond to pay liens or claims must meet the following requirements:

(1) be in a penal sum at least equal to the total of the original contract amount;
(2) be in favor of the owner;
(3) have the written approval of the owner endorsed on it;
(4) be executed by:
(a) the original contractor as principal; and
(b) a corporate surety authorized to do business in this state; and
(5) be conditioned on prompt payment for all labor, subcontracts, materials, specially fabricated materials, and normal and usual extras not exceeding 15 percent of the contract price.

It is clear that the bond before us does not, on its face, meet the statutory requisites of a Hardeman Act bond. In order to comply with § 53.202 of the Property Code, a Hardeman Act bond must be in favor of the owner and have the written approval of the owner endorsed on it; the bond before us is in favor of the original contractor. A Hardeman Act bond must be executed by the original contractor as principal, whereas the bond in question was executed by materialman, Loma, as principal. Most important, a Hardeman Act bond must “be conditioned on prompt payment for all labor, subcontracts, materials, specially fabricated materials, and normal and usual extras not exceeding 15 percent of the contract price.” Instead, the bond before us states only that Loma will reimburse the Obligee, Environmental, for all loss and damages sustained if Loma fails to perform its obligations. There is no language contained in the bond to show it was intended for the protection of subcontractors or materialmen who are not paid for services or materials provided to the general contractor. Thus, it is clear that the requirements of Section 53.202 of the Property Code were not complied with, and the bond in question is not a Hardeman Act bond on its face. We sustain Appellant’s points of error one and two.

We must now address Appellant’s points of error three and four wherein it contends there was no evidence, or, alternatively, insufficient evidence, admitted at trial to show the subject bond was issued in attempted compliance with the necessary requisites of a Hardeman Act bond pursuant to TEX.PROP.CODE ANN. § 53.211 (Vernon Supp.1984). In its Findings of Fact and Conclusions of Law, the trial court found:

(1) The purpose for requiring a bond to be provided was to secure payment of sub-contractors and to secure performance of the work covered in the Contract between Environmental Equipment and Loma; and
(2) The intent of requiring the bond was to have a Hardeman Act bond.

The court also made the following conclusion:

It was the apparent intent of the General Contractor to provide the Hardeman Act Bond in compliance with Article 5472d of Vernon’s Annotated Civil Statutes. Any bond filed in attempted compliance with that article is to be construed to effectuate such intent and all rights and remedies on such bond shall be enforceable in the same manner and under the same conditions as the bond provided for in Article 5472d.

Section 53.211 of the Property Code, entitled “Attempted Compliance,” states that:

A bond shall be construed to comply with this subchapter, and the rights and remedies on the bond are enforceable in the same manner as on other bonds under this subchapter, if the bond:
(1) Is furnished and filed in attempted compliance with this subchapter; or
(2) Evidences by its terms intent to comply with this subchapter.

We find no evidence in the record to show that the bond before us complied with either of these provisions.

In Sherwin-Williams Co. v. American Indemnity Co., 504 S.W.2d 400 (Tex.1973), the Texas Supreme Court held that a bond which was not “in a penal sum not less than the total of the original contract amount,” as required by the Hardeman Act failed to qualify as a Hardeman Act bond. They so held despite Respondent’s plea that the bond contained an express statement of intent to comply with the Act. The court stated:

The substantial defect in amount of the express terms of the_ bond conclusively rebuts any argument that the bond was furnished and filed in attempted compliance with the Hardeman Act, or that there was any intent to comply with the requirements of the Act.

Id. at 402. The court further stated that while it could construe the provision for attempted compliance as “permitting modification of a non-conforming bond to include parties not named in the bond, or to realign priorities between obligee of the bond to comport with the statutory scheme,” it would not permit them to increase the penal sum to meet the requisite amount.

Unlike the bond discussed in Sher-win-Williams, there is nothing contained within the terms of the bond at issue in the present case to show it was intended to comply with the Hardeman Act. In fact, when questioned about the bond, the attorney for Browning-Ferris Services, Inc., a subsidiary of Browning-Ferris Industries, Inc., stated that he “concluded when I first saw it that it did not comply with the provisions of the Hardeman Act insofar as my clients are concerned.” Even were we to modify the terms of the bond to include parties not named or to realign priorities between obligees of the bond, the bond still contains a substantial defect in that it is not conditioned on prompt payment for labor, subcontracts, materials, etc., as required by § 53.202 of the Property Code. Like the Supreme Court in Sherwin-Williams, we do not believe it is within this court’s authority to completely reconstruct the bond before us so that it will comply with the statutory provisions for creating a Hardeman Act bond. Therefore, we reverse the trial court’s judgment and render judgment that Appellee take nothing against Appellant.

The judgment of the trial court is reversed and rendered.

      . The provisions of the Hardeman Act (TEX. REV.CIV.STAT.ANN. arts. 5452-5472e) have been incorporated into the new Property Code, TEX.PROP.CODE ANN. § 53.201-53.211 (Vernon Supp.1984). We will refer to the "Harde-man Act” generally, but will cite to the appropriate section of the Property Code.


source: Caselaw Access Project

author: SEARS, Justice.

license: Public Domain

text:
    Lary R. KUPOR, M.D. D/B/A St. Joseph Dialysis Center, Relator, v. Honorable Peter S. SOLITO, Respondent.
    No. A14-84-750CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 14, 1985.
    Rehearing Denied March 14, 1985.

      Don Karotkin, Funderburk & Funder-burk, Houston, for relator.
    Marty F. Akins, Akins & Pettiette, Houston, for respondent.
    Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
   OPINION

SEARS, Justice.

This is an original writ of mandamus proceeding. It was instituted by Lary R. Kupor, M.D., Relator, against the Honorable Peter S. Sólito, Respondent and Acting Judge of the 165th District Court of Harris County, to compel the Respondent to set aside his order requiring Relator to answer certain questions submitted during pre-trial oral deposition. We agree with Respondent that the answers are discoverable and not privileged, and therefore deny Relator’s writ.

This case involves a wrongful death suit brought by the estate of Ruby Lillian Durham and her daughters (plaintiffs below) against Relator (defendant below). Durham was a patient at Relator’s dialysis center. On January 6, 1984, as she was receiving her dialysis treatment, the intravenous needle which returned the filtered blood to her body came out of her arm. She was unattended for a period of twenty-five minutes. The dialysis machine continued to pump her blood onto the floor and walls. She was found dead when her attendants returned. The plaintiffs below sued Relator and his attendants alleging negligence. During pre-trial discovery proceedings the plaintiffs took Relator’s oral deposition and attempted to discover certain information communicated to Relator by the attendants the day after Durham died. These questions concerned how much blood was on the walls and floor, what kind of medical condition Durham was in when discovered by the attendants, what the attendants did for Durham, and whether or not Durham was dead when the attendants first returned to the treatment room. Relator refused to answer these questions claiming the answers are privileged. Plaintiffs certified the questions. On October 22, 1984, Respondent granted plaintiffs’ motion requiring Relator to answer the questions.

This court may issue a writ of mandamus to correct a clear abuse of discretion by a trial judge in a discovery proceeding. West v. Solito, 563 S.W.2d 240 (Tex.1978); Barker v. Dunham, 551 S.W.2d 41 (Tex.1977).

Relator first contends Respondent abused his discretion in ordering Relator to answer the questions because the answers were sought for the purpose of impeachment. Relator relies on Russell v. Young, 452 S.W.2d 434 (Tex.1970) and W.W. Rodgers & Sons Produce Co. v. Johnson, 673 S.W.2d 291 (Tex.App.—Dallas 1984, no writ), for his contention that this purpose renders the information nondiscoverable. Relator directs attention to a statement made by plaintiffs during the deposition in which they admitted they might use the answers for impeachment purposes. The cases cited are distinguishable in that both cases show the information sought was solely for impeachment purposes. There has been no such admission in Relator’s case; to the contrary, the record indicates the plaintiffs sought this information for other purposes in addition to use for impeachment. Thus Relator can not claim the answers are non-discoverable because he has failed to prove the information was sought solely for impeachment.

Relator also asserts Respondent abused his discretion in ordering him to answer because the answers are privileged under Tex.R.Civ.P. 166b(3)(d). This rule makes non-discoverable:

any communication passing between agents or representatives or the employees of any party to the action or communications between any party and his agents, representatives or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of the claim or the investigation or the investigation of the occurrence or transaction out of which the claim has arisen.

Relator contends a literal reading of this rule precludes discovery of the information communicated to him by the dialysis center attendants the day after Durham’s death because he was engaging in “the investigation of the occurrence or transaction out of which the claim has arisen.” Respondent challenges his assertion of privilege on grounds that Relator’s deposition testimony reveals he did not fill out an incident form because he did not consider this an incident of the type usually documented by this form. Therefore, Respondent contends, Relator could not have been in the process of investigating a “non-incident.”

While we understand Relator’s reliance on a literal reading of the rule, the courts have not interpreted the privilege rule in the manner urged by Relator.

Rule 166b, which became effective April 1, 1984, was enacted for the purpose of combining all discovery concepts into one rule. It incorporates provisions previously located in Rules 167, 186a and 186b. These former rules have been interpreted as allowing the privilege against discovery to be invoked only where the communication sought to be protected was prepared in connection with the prosecution or defense of the lawsuit in which the discovery is sought. Allen v. Humphreys, 559 S.W.2d 798, 803 (Tex.1977). See also Valentino v. City of Houston, 674 S.W.2d 813 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r. e.). By Relator’s own admission the communications with his attendants were not made in connection with the prosecution or defense of a lawsuit since at the time they were made there was no pending claim nor lawsuit. We also note a recent decision in which the Austin Court of Appeals held that under Rule 166b the privilege can not be upheld absent proof that the communication was made in connection with the possible legal defense of a claim. Harris Data Communications, Inc. v. Dellana, 680 S.W.2d 641 (Tex.App.—Austin 1984, writ requested).

The information sought by the plaintiffs was not privileged. Whether or not it will be admissible, the information sought is discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence. Tex.R.Civ.P. 166b. Here the plaintiffs were entitled to seek information as needed to establish certain key facts in the lawsuit.

We find no clear abuse of discretion in the issuance of Respondent’s order requiring Relator to answer the questions submitted in deposition. The writ of mandamus is denied.


author: ELLIS, Justice.

text:
    Ex parte Jack Eugene BURROUGHS.
    No. A14-84-843CV.
    Court of Appeals of Texas, Houston (14th Dist).
    Feb. 14, 1985.
    L.T. Bradt, Houston, for appellant.
    Thomas R. Conner, Steven P. Lindamood, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
   OPINION

ELLIS, Justice.

On December 18, 1984, Judge Robert Webb of the 312th Judicial District Court of Harris County held Relator, Jack Eugene Burroughs, guilty of contempt of court for willfully disobeying the court’s order of October 19, 1984, by failing and refusing to make temporary child support and alimony payments as ordered and for failure to produce copies of the medical and health policies, insuring his wife Candice Burroughs and minor child, to her attorney on or before October 23, 1984. Relator was sentenced to twenty days in the Harris County Jail with the provision that the Relator could purge himself of the contempt by paying the amount in arrears, found by the court to be $3,400, plus court costs and attorney’s fees in the amount of $2,000. Relator was released from jail on bond pending final determination of this case. Relator raises three points of error. We do not agree with Relator’s points of error and deny the writ of habeas corpus.

In Relator’s first point of error he claims that the trial court erred in compelling him to give testimony against himself over his Fifth Amendment objections. The second point of error alleges that the commitment order was fatally defective in that it does not contain a specific finding of the manner in which Relator has violated the prior order and is insufficient to support a contempt decree. The last point of error asserts that the notice given to Relator is at variance with the motion for contempt, thereby denying Relator due process of law.

On October 19, 1984, the trial court entered a second amended temporary order. Among other things, the court ordered that Relator pay child support of $1,400 on October 20, 1984, and a like amount on the fifth and twentieth day of each month thereafter until further order of the court. Additionally the court required that Relator pay $2,500, on or before October 22, 1984, as temporary support for his wife. The court also ordered that Relator produce all medical and health insurance policies, insuring his wife and the minor child, to his wife’s attorney on or before October 23, 1984. On November 1, 1984, Relator’s wife filed a motion for contempt alleging that Relator had willfully disobeyed the court’s order. In that motion his wife claimed Relator had failed to pay the sum of $2,500 on or before October 22, 1984. Additionally his wife alleged that Relator would further be in arrears for child support payments due on November 5, 1984, in the amount of $1,400. Lastly, Respondent alleged that Relator had failed to produce all medical and health insurance policies as required in the court’s amended orders.

On November 26, 1984, Judge Webb signed an order setting a show cause hearing. The order stated that the purpose of the hearing was to determine whether Relator should be held in contempt for disobedience of the court’s order of October 19, 1984. The court ordered Relator to show cause why he had willfully failed to pay $2,500 to his wife on October 22, 1984, and $1,400 for child support on November 5, 1984, November 15, 1984, and December 5, 1984. The court also ordered that Relator show cause why he failed to furnish his wife’s attorney with proof of all medical and health insurance policies by October 23, 1984.

A hearing was held on December 13, 1984. The record shows that at the beginning of the hearing an oral stipulation was presented to the court. In the stipulation Relator agreed that he was in contempt of the court’s order of October 19, 1984, for failure to pay the child support and temporary alimony payments as ordered, and the arrearage was $3,400. The stipulation also stated that Relator was in contempt for failure to produce the insurance policies as required by the court’s order. Relator did not stipulate to the willfulness of the contempt.

His wife called Relator as her first witness. Her attorney first asked Relator his name. Relator pled the Fifth Amendment. The court required him to answer the question. Relator also pled the Fifth Amendment to a question concerning his employment and office location. The court again required an answer. The hearing was then recessed until December 18, 1984. When the hearing resumed, his wife did not recall Relator to the stand. Relator’s bookkeeper, his financial manager, and his wife testified at the hearing.

At the conclusion of the hearing, the court found that Jack Eugene Burroughs was guilty of willful contempt of the court order of October 19, 1984. The court granted the motion for contempt and sentenced Relator to 20 days in Harris County Jail. The court’s commitment order stated that Relator could purge himself of the contempt order by paying $3,400, the. amount in arrearage, plus court costs and attorney’s fees in the amount of $2,000.

We do not agree that the trial court erred in compelling Relator to give testimony against himself over his Fifth Amendment objections. Relator argues that since habeas corpus proceedings are criminal in nature he should not have been called to the stand and compelled to answer questions over his timely Fifth Amendment objections. Relator’s Fifth Amendment privilege against self-incrimination was not violated. In Ex parte Snow, 677 S.W.2d 147 (Tex.App.—Houston [1st Dist.] 1984, no writ), the Respondent-wife testified extensively on child support arrearages and specifically testified as to what payments were made, when, and in what amount. The court held in that case that “[ejvidence that child support payments are in arrears is prima facie proof of contempt_ Relator’s (husband’s) contempt was proven before he took the stand, and any error in compelling him to testify is harmless.” Since Relator in our case stipulated to the arrearage, he created prima facie proof of his contempt. Relator’s wife had the burden to establish a prima facie case, which she did. Involuntary inability is a defensive matter on which Relator had the burden of proof. Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247 (1955). Relator has failed to meet his burden of proof.

Further, we hold the testimony that Relator gave was not incriminating. He testified to his name, profession, and office location. In oral argument, Relator’s attorney claimed that such information was incriminating because it identified him. However, the stipulation also identified him. The wife and trial judge also could have identified Relator. Clearly point of error number one has no merit.

In his second point of error, Relator contends that the commitment order is fatally defective in that it does not contain a specific finding of the manner in which Relator had violated the prior support order and is insufficient to support a contempt decree. In his stipulation Relator agreed that he was in contempt of the court’s order for failure to pay the sum of $3,400 from October 20, 1984, to December 18, 1984. Relator is now asking this court to ignore the stipulations made in open court, entered of record, and properly recited in the commitment order. Rule 11 of the Texas Rules of Civil Procedure provides that no agreement between attorneys or parties touching any suit pending will be enforced unless the agreement is in writing, signed, and filed with the papers as part of the record, or unless it is made in open court and entered of record. In City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979), the Supreme Court held that the requirements of Rule 11 were met when the agreement was reflected in the judgment. Therefore, we do not agree that the commitment order is insufficient to support a contempt decree. Relator’s second point of error is overruled.

In Relator’s third and final point of error he contends that the Relator was denied due process of law because the notice given to Relator is at variance with the motion for contempt. By his last point of error Relator is again attempting to circumvent the stipulations made in open court. In Bigfoot Independent School District v. Genard, 116 S.W.2d 804 (Tex.Civ.App.—San Antonio 1938), aff'd, 133 Tex. 368, 129 S.W.2d 1213 (1939), the court dealt with the same situation. In Bigfoot the court held that where a petition did not contain a factual allegation, but was later adduced at trial and agreed to by both parties, it had the same effect as if it had been expressly alleged in the petition. Relator agreed to the stipulation entered into, therefore Relator was not denied due process of law. His last point of error has no merit,

Application for writ of habeas corpus is denied and Relator is remanded to the custody of the sheriff of Harris County for confinement pursuant to the court’s order of commitment.


author: PAUL PRESSLER, Justice.

text:
    Ray CASIANO, Appellant, v. STATE of Texas, Appellee.
    No. B14-84-406CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 14, 1985.

      Mike Hernandez, Houston, for appellant.
    Molly D. Shannon, Mike Driscoll, Houston, for appellee.
    Before PAUL PRESSLER, MURPHY and DRAUGHN, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from an order of the juvenile court waiving jurisdiction and transferring appellant to criminal district court for trial for aggravated robbery on Count II of the petition. We affirm.

Complainant and his friend were walking toward a coliseum in Houston to attend a concert when they were confronted by appellant and a group of about seven other boys. Appellant held a knife on complainant while the others took a wallet and some money from his pockets. One of the group hit complainant’s friend with a chain. Complainant testified that the knife appellant held toward his face was like a hunting knife and that he was afraid of getting hurt. He also stated that appellant told him he wanted his shirt and attempted to take it off him. A member of the Guardian Angels testified that appellant and the others ran when he approached the scene and that he did not see a weapon or find one on appellant when he apprehended him.

The juvenile probation officer who prepared the Certification Investigation Report, as required by statute, testified that appellant had been previously referred eight times to the juvenile system. The officer testified that if the court retained jurisdiction, he would recommend that appellant be re-committed to the Texas Youth Commission, whose services would be appropriate for appellant. He also stated that none of the prior referrals were for aggravated offenses and that appellant did not appear to be an aggressive person.

In his sole point of error, appellant contends that the evidence is insufficient to support the trial court’s waiver of jurisdiction and transfer to criminal court. Specifically he argues that the requirements of TEX.FAM.CODE ANN. § 54.02(a) and (f) were not met by the juvenile court in its finding. Those sections provide for such a waiver after full investigation and hearing if the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings. Subsection (f) requires the court to consider the following, among other matters:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

TEX.FAM.CODE ANN. § 54.02(f) (Vernon 1975).

Appellant argues that the court’s findings are inconsistent with the evidence presented. For example, the court uses the word “offenses” instead of “offense” in its finding even though the record reveals that appellant was initially charged with two counts of aggravated robbery, and one count was subsequently dropped. This is not error, as the State clearly announced it would proceed only on Count II of the petition, and the Court in its finding stated it was waiving jurisdiction on Count II of the petition.

Appellant further complains that the finding that the offenses were committed in an aggressive and premeditated manner is not sufficiently supported by the evidence. In reviewing insufficiency points, the court must consider all the evidence, including that which is contrary to the judgment, in determining whether it supports the judgment. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). The standard of review is whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

Complainant testified that he and a friend were accosted by the group, his friend was hit with a chain by another boy, appellant held a hunting-size knife about a foot from his face for several minutes while the others took a wallet and money from him, and appellant tried to take his shirt. This evidence is sufficient to support the finding.

Appellant also contends that the court’s finding as to his sophistication and maturity is insufficient and that its finding that there is little prospect for his rehabilitation is inconsistent with the evidence. He also complains that there is no finding by the court as to his record and previous history.

No separate findings of fact or conclusions of law are required by the code for the juvenile court to transfer proceedings to district court for criminal proceedings. In the Matter of Paul Ray Honsaker II, 539 S.W.2d 198, 202 (Tex.Civ.App.—Dallas 1976, writ ref’d n.r.e.). The order, however, should be sufficiently specific to allow an appellate court to review and understand the reasons for the juvenile court’s determination. Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966). An order is sufficient which states that all factors listed in § 54.02(f) were considered by the court and includes specific reasons for the waiver of jurisdiction such that the appellate court may review the basis for the conclusion and determine whether the evidence justifies the conclusion. T.P.S. v. State, 590 S.W.2d 946, 953 (Tex.Civ.App.—Dallas 1979, writ ref’d n.r.e.), aff'd on remand, 620 S.W.2d 728 (Tex.Civ.App.—Dallas 1981, no writ); In re W.R.M., 534 S.W.2d 178, 182 (Tex.Civ.App.—Eastland 1976, no writ). In considering whether a juvenile should be tried as an adult, the trial court is only bound to consider all six factors under subsection (f) and need not find that each factor is established by the evidence. Findings on the first three factors alone are sufficient to support the waiver as long as the court considered the other three factors. In re Q.D., 600 S.W.2d 392, 395 (Tex.Civ.App.—Fort Worth 1980, no writ). A Court of Appeals cannot substitute its judgment for that of the juvenile court which transferred the juvenile to district court. In the Matter of I.L. v. State, 577 S.W.2d 375, 377 (Tex.Civ.App.—Austin 1979, writ ref’d n.r.e.); B.L.C. v. State, 543 S.W.2d 151, 154 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.).

Here, the Order Waiving Jurisdiction states that the court has considered each of the six factors enumerated in § 54.02(f). The Court specifically found the following: Appellant is of sufficient sophistication and maturity to have waived his rights and to have aided in the preparation of his defense; the offense alleged was committed against the person of another and committed in an aggressive and premeditated manner; evidence was presented upon which a grand jury might be expected to return an indictment; and there is little if any prospect of adequate protection of the public and likelihood of rehabilitation.

The evidence is sufficient to support the trial court’s waiver of jurisdiction and the transfer of appellant. The point of error is overruled.

Affirmed.


author: GUILLOT, Justice.

text:
    GREAT NATIONAL CORPORATION and GNC Energy, Appellants, v. D.W. CAMPBELL, T.J. Fouts, Jr., George Bristol, Charles Kuhn, A. Gary Muir, and Larvena Investments, Inc., Appellees.
    No. 05-84-00428-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 15, 1985.
    Rehearing Denied March 19, 1985.

      Thomas R. Hartnett, Dallas, for appellants.
    Edward S. Koppman, Dallas, for appel-lees.
    Before STEPHENS, WHITHAM and GUILLOT, JJ.
   GUILLOT, Justice.

This is an appeal from separate trials in the same suit. For clarity’s sake, we shall refer to appellants collectively as GNC and appellees collectively as Campbell. In the declaratory judgment trial, the jury found that incident to the formation of a joint venture GNC and Campbell agreed that a certain coal lease would be part of the joint venture. In the accounting trial, the jury found that certain expenses GNC charged were unreasonable and unnecessary. GNC assigns thirteen points of error; Campbell assigns four cross points. We affirm the judgment against GNC, but reverse and render judgment on two of Campbell’s cross points.

Distilling the facts to their most basic elements, we find that in 1973 GNC and Campbell entered into a joint venture to acquire and exploit coal leases and resources in Oklahoma. In 1979 GNC obtained a coal lease on land owned by the United States and received income from that lease. Campbell maintained that the Federal coal lease was within the terms of the joint venture; GNC said not so.

The Declaratory Judgment Trial

In its first three points, GNC contends that the judgment must be reversed because the agreement between the parties is unambiguous and susceptible of only one reasonable construction, viz., that the lease in the joint venture did not embrace the land under the Federal coal lease. To support this, GNC points to this language: “The area of interest includes those portions of LeFlore and Haskell Counties, Oklahoma, described and referred to in an instrument entitled agreement of lease, dated in November 1972, between Charles W. Martin and W.E. Roberts, Bokoshe Industries, Inc. et al.” (emphasis added). GNC argues that the word “includes” limits the area of the joint venture leases to those portions of LeFlore and Haskell Counties that are described in the Agreement of Release. It further argues that, because the joint venture is clearly limited, the contract between GNC and Campbell is unambiguous and that no parol evidence should have been offered to vary it. That being so, there would be no evidence to support the judgment.

Campbell, on the other hand, contends that the word “includes” is susceptible of more than one reasonable interpretation and, therefore, the contract is ambiguous. Specifically, Campbell contends that “includes” is a word of enlargement, not of limitation. They further argue that, ambiguity being established, the court correctly allowed the jury to hear parol evidence of the parties’ intention, and that there is ample evidence to support the jury’s finding that the Federal coal leases were included in the joint venture.

In examining the language of the contract, we note that the word “includes” has at least two reasonable meanings in the context of the entire contract. It may mean that only those portions of the Le-Flore and Haskel Counties referred to in the Agreement of Release of November, 1972, are included in the joint venture. In that case, “includes” is a word of limitation. On the other hand, “includes” may be regarded as merely illustrative of those counties to be included. In that case, “includes” is a word of enlargement.

From the very instrument itself, we are unable to determine whether the parties intended the word “includes” to be a word of enlargement or a word of limitation. This is not surprising. There are many cases holding both ways in Texas and in other jurisdictions. Perhaps the court in Peerless Carbon Black Company v. Sheppard, 113 S.W.2d 996 (Tex.Civ.App.—Austin 1938, writ ref’d), best summarized the situation by stating that, although the word “including” is susceptible of different shades of meaning, most often it is used as a term of enlargement. “[T]he words ‘includes’ and ‘including’ are regarded.... as being identical or equivalent to each other; and ... unless the context in which such words are used requires, they are never regarded as being identical with or equivalent to ... ‘meant,’ ‘meaning’ or ‘by which is meant.’ ” Peerless, 113 S.W.2d at 997. Another court has held that the term “including”—a variation of “includes”—is “generally employed as a term of enlargement and not a term of limitation or enumeration.” Houston Bank & Trust Co. v. Lansdowne, 201 S.W.2d 834, 838 (Tex.Civ.App.—Galveston 1947, writ ref’d n.r.e.); cf. Skillman v. Abruzzo, 352 Mich. 29, 88 N.W.2d 420 (1958). We hold that the contract is ambiguous and that the court was correct in admitting evidence to ascertain the intention of the parties. See James Stewart & Co. v. Law, 149 Tex. 392, 233 S.W.2d 558 (1950). The jury heard evidence of the circumstances surrounding the execution of the joint venture contract, and there is ample evidence to support its finding. We overrule points of error one, two, and three.

The Accounting Trial

In its next two points of error, GNC contends that the court erred in conducting a separate trial as to the accounting and attorney’s fees because there were no pleadings to support it and because Campbell waived the accounting and attorney’s fees by not presenting evidence thereon during the declaratory judgment trial.

We have examined the transcript and find a prayer for accounting and attorney’s fees in Campbell’s Second Amended Original Petition. Furthermore, GNC’s contention that no separate trial should have been held on the issues of an accounting and attorney’s fees is without merit. It would have been a waste of the court’s, the jury’s, and the attorneys’ timé to have Campbell put on testimony about the need for an accounting or the amount of attorney’s fees if he were not successful in his declaratory judgment claim. The court had discretion in ordering a separate trial on these issues, and we find no abuse. Fisher v. Howard, 389 S.W.2d 482, 488 (Tex.Civ.App.—Dallas 1965, no writ). We overrule points of error four and five.

In its sixth point of error, GNC contends that the court erred in excluding its full accounting of income and expenses from leases other than the Federal coal lease. The court’s order specifically limited the accounting to income and expenses from the Federal coal lease as that was the only lease in dispute. We find no error and overrule point of error six.

Attorney’s Fees

In its seventh, eighth, ninth, and tenth points, GNC contends that the court erred in rendering judgment for attorney’s fees because, in the first trial, there was no evidence submitted, no jury issue supporting attorney’s fees, and no pleadings to support the issue. Because we hold that the trial court did not abuse its discretion in having a second trial on the issue of attorney’s fees, and because we hold, after examining the record, that there are sufficient pleadings and ample evidence to support the award, we overrule points of error seven, eight, nine and ten.

In its final three points, GNC contends that the court erred: (1) in allowing $30,000 attorney’s fees related to the first trial when Campbell did not put on evidence of fees at that trial; (2) in allowing $2,500 for appellate work connected with the first trial for the same reason; and (3) in allowing any attorney’s fees because they were waived in the first trial. GNC has neither a statement nor argument and authorities under these points in its brief. Thus, these points are waived. Arrechea v. Arrechea, 609 S.W.2d 852, 855 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.). We overrule points of error eleven, twelve, and thirteen.

Burden of Proof in Accounting Trial

In two cross points, Campbell contends that the court erred in the accounting trial in failing to place the burden of proof on GNC to show that it was entitled to credit for its charge regarding the rental of equipment. At the accounting trial, GNC did not attempt to prove the rental value of the equipment or that the rental charge was a reasonable and necessary expense of the joint venture.

While Campbell’s cross points raise an issue of first impression in Texas, there are analogous cases supporting its contention that GNC — as the party required to file an accounting — had the burden to prove the credit it claimed. It is well recognized that a defendant must prove any payments made which would reduce the amount of an unpaid balance alleged to be due. See Southwestern Fire & Casualty Company v. LaRue, 367 S.W.2d 162, 163 (Tex.1963); Twin City Bowling Lanes, Inc. v. C.I.T. Corporation, 376 S.W.2d 94, 96 (Tex.Civ.App.—Fort Worth 1964, no writ). Campbell correctly argues that the rental charge GNC deducted from profits is essentially a payment by the joint venture that reduces Campbell’s share of the profits. Thus, Campbell contends that the burden was on GNC to prove its entitlement to the credit.

In other jurisdictions, courts have placed the burden of proof in accounting lawsuits on the accounting partner to prove all items of the accounting, including credits. Gerber v. Buehler, 194 Kan. 10, 397 P.2d 352 (1964); Wilson v. Moline, 229 Minn. 164, 38 N.W.2d 201 (1949). We are persuaded by Campbell’s argument and the authority from our sister states. Because Campbell and GNC were partners and in a fiduciary relationship, and because GNC was ordered to file an accounting, we hold that the burden of proof was on GNC as the accounting partner to prove every item of the accounting. GNC failed to do this, and the court should have awarded an additional 15% or $42,000 to the judgment. We sustain Campbell’s two cross points, reverse that portion of the judgment pertaining to damages, and render judgment for Campbell in the amount of $571,361.80.

The judgment below is affirmed in part and reversed and rendered in part.

Costs taxed against GNC.


author: ALLEN, Justice.

text:
    FIRST STATE BANK IN ARCHER CITY, Appellant, v. The SCHWARZ COMPANY, Appellee.
    No. 05-84-00498-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 20, 1985.
    Rehearing Denied March 15, 1985.

      Charles R. Haworth, Johnson & Swanson, Dallas, for appellant.
    Hollye C. Fisk, Greenberg, Benson, Fisk & Fielder, P.C., Dallas, for appellee.
    Before CARVER, ALLEN and WHIT-HAM, JJ.
   ALLEN, Justice.

First State Bank of Archer City appeals from an instructed verdict which was granted at the close of its case in favor of The Schwarz Company, Inc. In two points of error, the bank maintains that the trial court erred in granting the instructed verdict because it established a prima facie case against Schwarz under the theories of promissory estoppel and assignment. In its third point of error, the bank asserts that certain exhibits were admissible. We agree with the bank’s first point of error and hold that the bank’s evidence presented a prima facie case which required submission of the promissory estoppel issue to the jury. Accordingly, we reverse.

Schwarz was general contractor for the construction of the Tealwood Apartments. On July 19, 1979, Schwarz, through its president, W.O. Henry, executed a subcontract with Johnny Holman of the Holman Company to do painting and dry wall work on the project. At Holman’s request, Henry wrote the following letter:

July 20, 1979
Mr. Carter MacGregor
First State Bank
Archer City, TX 76351
Re: Contract Between The Schwarz Co.
and Holman Drywall and Paint Co. Dear Mr. MacGregor:
By request of Mr. John Holman, we are sending this letter as our approval that we, The Schwarz Company write joint checks payable to First State Bank in Archer City and Holman Drywall and Paint Company as joint vendors.
The monthly draws are payable on the tenth of each month for work completed the prior 30 days. The above reference contract is for our project known as: the Tealwood Apartments, 6050 Melody Lane, Dallas, Texas. The contract amount between The Schwarz Company and Holman Drywall and Paint Company is $120,712.79.
If you need any additional information, please let me know.
Sincerely,
/s/ W.O. Henry
W.O. Henry
President

Holman presented the letter and a copy of his contract with Schwarz to the bank and received a line of credit from the bank in the amount of $30,000.00. At the same time, Holman signed a security agreement and executed a promissory note payable to the bank. Schwarz failed to issue any checks payable jointly to the bank and Holman, but instead, issued checks payable solely to Holman or jointly to Holman and one of his suppliers. Holman failed to repay his loan.

The bank argues that it relied on the letter from Henry in advancing Holman a line of credit and that it made a prima facie case of promissory estoppel at trial. In our review of the trial court’s granting of the instructed verdict, we must consider the evidence in the light most favorable to the party against whom the verdict is instructed. White v. Southwestern Bell Telephone Co., 651 S.W.2d 260, 262 (Tex.1983). Texas has adopted the doctrine of promissory estoppel as set forth in the Restatement of Contracts. Fretz Construction Co. v. Southern National Bank of Houston, 626 S.W.2d 478, 480 (Tex.1981); Wheeler v. White, 398 S.W.2d 93 (Tex.1965). The RESTATEMENT (SECOND) OF CONTRACTS § 90(1) (1979) provides:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

Since an instructed verdict was granted, we must review the entire record to determine if there is any evidence of probative value to support a jury instruction on the issue of promissory estoppel.

Presented in the light most favorable to the Bank, the record shows that the Schwarz Company by letter informed the bank that it approved Holman’s request to write checks jointly to the bank and Holman. Henry testified that he knew the letter would be delivered to the bank and used to assist Holman in arranging financing. Further, Henry stated that he knew the bank might rely on the promise in the letter to assure that the loan would be repaid. MacGregor, the bank president at the time of the Holman loan, testified that the bank would not have made the loan to Holman without the letter from Schwarz and that he relied on the letter in arranging the Holman financing. Moreover, the joint checks were to be the principal method by which the bank would collect the Holman loan.

We conclude that these facts are sufficient to support a prima facie case of promissory estoppel. See Fretz Construction Co. v. Southern National Bank of Houston, 626 S.W.2d 478. Thus, a fact issue is presented for jury determination. Accordingly, we hold that the trial court improperly instructed a verdict against the bank. This error requires us to reverse the cause and remand it to the trial court.

Since a reversal is required by our holding, we need not address the bank’s additional points of error. Nevertheless, nothing in our opinion is intended to preclude the bank from pursuing any cause of action it may have based on assignment upon a retrial of the cause. Further, we are urged to consider the trial court’s refusal to admit certain evidence and to offer guidance. Recognizing the difficulty of predicating circumstances which may arise upon a retrial affecting the admissibility of evidence, we leave it to the trial court to determine the admissibility of the evidence in question in accordance with the circumstances existing at the time of the tender.

Reversed and Remanded.


author: PER CURIAM.

text:
    SOUTHLAND PAINT COMPANY, INC., Appellant, v. THOUSAND OAKS RACKET CLUB, A DIVISION OF COUNTRY CLUB CONDOMINIUMS, LTD., et al., Appellees.
    No. 04-84-00456-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 20, 1985.
    Rehearing Denied March 25, 1985.

      Aaron L. Jackson, John W. Weber, Jr., Lawrence R. Linnartz, James E. McCamish, San Antonio, for appellant.
    Melvin A. Krenek, San Antonio, for ap-pellees.
    Before CANTU, REEVES and TIJERI-NA, JJ.
   OPINION

PER CURIAM.

Appellees have filed a motion to dismiss this appeal on the ground that the motion for new trial filed by appellant was filed under the wrong cause number and was therefore ineffective to extend the time for filing the appeal bond. If appellees are correct, the appeal bond filed by appellant was untimely and the appeal has not been perfected. TEX.R.CIV.P. 356(a).

Appellees brought suit against appellant Southland Paint Company, Inc., and a second defendant. On July 31, 1984, two orders were signed by the trial court. It is impossible to tell from the transcript which order was signed first. One order severed appellees’ cause of action against South-land and assigned it cause number 84-CI-07903-A. Appellees’ suit against the second defendant retained the original cause number of 84-CI-07903. The second order signed on July 31st is styled, “Interlocutory Judgment.” It is a default judgment in appellees’ favor against Southland, and it bears cause number 84-CI-07903. All but one of the remaining instruments in the transcript likewise are filed under cause number 84-CI-07903. These include, among others, the TEX.R.CIV.P. 239a certificate of address filed by appellees, the motion for new trial filed by Southland, appellees’ response to the motion for new trial, the order overruling the motion for new trial signed by the trial court, and Southland’s appeal bond.

Appellees contend in their motion to dismiss that since Southland’s motion for new trial was filed under cause number 84-CI-07903 rather than 84-CI-07903-A, it did not extend the time for filing the cost bond on appeal. Appellees cite the recent supreme court case of Philbrook v. Berry, 683 S.W.2d 378 (1985). The rule enunciated in Philbrook is that “the motion for new trial must be filed in the same cause as the judgment it assails.” (Emphasis added). Philbrook also involved a severance, a default judgment, and a subsequent motion for new trial. The default judgment in Philbrook was signed in the severed cause while the defendant’s motion for new trial was filed in the original cause. The instant case is distinguishable in that both the motion for new trial and the judgment it assails were filed in the same cause. Furthermore, all but one other document in the transcript contain the original cause number rather than the severed cause number. It is thus clear that although the judge ordered the action against Southland to bear a new cause number, this order was never implemented by appellees, or the judge. It seems unduly harsh to punish an appellant for failure to comply with the terms of an order of severance ignored by appellees and the court. A defendant who has suffered a default judgment should be able to look to that judgment to determine the cause number under which he should file his motion for new trial. Philbrook demands no more than that the motion for new trial be filed in the same cause as the judgment it assails. This was done in the instant ease.

The motion to dismiss is denied.

      . The lone exception is a Motion for Leave to Joint as Co-Counsel for Southland filed by a law firm that had not participated in the trial to that point. It bears cause number 84-CI-07903-A.

      . See also Philbrook v. Berry, 679 S.W.2d 651, 652 (Tex.App.—Houston [1st Dist.] 1984, no writ).


text:
    NATIONAL MAR-KIT, INC., Appellant, v. Roy Jimmie FORREST, Appellee.
    No. C14-84-227CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 21, 1985.

      Louis J. Gurwitch, Lackshin & Nathan, Houston, for appellant.
    Albert L. Giddens, Pasadena, for appel-lee.
    Before JUNELL, ROBERTSON and CANNON, JJ.
   OPINION

JUNELL, Justice.

National Mar-Kit, Inc., (Mar-Kit) appeals from a judgment rendered in favor of Roy Jimmie Forrest for $15,000 and $1,500 in attorney’s fees. The nature of the suit is at issue. Appellant Mar-Kit claims that appellee brought a suit on a note and bases its major points of error on that premise. Appellee Forrest considers his cause of action a suit on a loan apart from the note. Considering the pleadings and the facts established in the record, we agree with appellee and affirm the judgment.

In July, 1978, Forrest returned to the United States after working abroad. While visiting in the home of his friends and one-time neighbors, Elvis and Martha Stone, he mentioned the fact that he had saved $45,000.00 during his absence and was looking for a place to invest his money. At that time Elvis Stone was president and general manager of a closely held corporation, National Mar-Kit, Inc. Forrest testified that Stone suggested that Forrest loan some of the money to the corporation at 15 percent interest. Thinking the offer a good one, Forrest agreed and in November wrote a check for $15,000 payable to Elvis Stone, personally.

Forrest testified that Stone had suggested the loan was “to the corporation” and it was Forrest’s impression that he was lending money to the corporation. Stone remembers the transaction differently. He testified by deposition that the loan was to him personally but there had been some discussion that he might in turn loan the money to the corporation.

The cheek was endorsed by Stone and deposited into Mar-Kit’s account. Stone withdrew the funds a few days later and used them for personal and family living expenses.

In late December, 1978, or early January, 1979, Forrest asked Stone for a promissory note to evidence the loan. Forrest was attempting to borrow money to buy a house and needed the note for proof of his financial status. Forrest accepted from Stone a note naming Stone, personally, as maker. In October, 1979, Forrest advised Stone that he wanted payment on the note and was giving ninety days’ notice. Both Stone and the corporation have refused to pay the loan or the note upon demand. In April, 1980, Forrest returned to Stone the note. Forrest continued to seek payment and on August 5, 1981, filed suit against Elvis Stone, Martha Stone and appellant, National Mar-Kit, Inc.

Appellee’s first amended petition alleges that Stone, acting as an officer of the corporation, requested a loan for the corporation and that Forrest was induced to make the loan by Stone’s representations that the loan was to the corporation. Nowhere in the petition does Forrest mention that the debt sued upon was evidenced by a note. The case was tried before the court. Judgment was rendered against National Mar-Kit, Inc., only.

Findings of fact and conclusions of law were filed. The court found as a fact that Forrest loaned National Mar-Kit, Inc., $15,-000.00 pursuant to a request by Stone acting as an officer of the corporation. One of the conclusions of law was that National Mar-Kit, Inc., was indebted to Forrest in the amount of $15,000.00.

Appellant’s first eight points of error are all based upon the premise that the suit and judgment are based upon the note. His argument under the first four points is that the corporation cannot be obligated or indebted on a negotiable instrument unless its signature appears on the instrument. Tex.Bus. & Com.Code Ann. § 3.401 (Tex. UCC) (Vernon 1968). He then argues that any evidence offered to show that the corporation is obligated on the note is inadmissible parol evidence that cannot support the judgment, citing First State Bank v. Dyer, 151 Tex. 650, 254 S.W.2d 92 (1953); Farrier v. Hopkins, 131 Tex. 75, 112 S.W.2d 182 (Tex.1938); and Vector Corp. v. First State Bank & Trust Co., 430 S.W.2d 536 (Tex.Civ.App.—Waco 1968, writ ref’d n.r. e.). We find that Dyer, Farrier and Vector are not controlling here because Forrest did not sue on the note, but on the underlying obligation of the corporation. Since the suit was not based upon a note, the parol evidence rule had no application.

It is clear that Forrest did have the option of suing on the underlying obligation rather than the note. Delivery of the note of a third person (Stone) to the creditor does not constitute payment or release of a preexisting debt unless there is an express agreement to that effect between the parties to the transaction. Stone Fort National Bank v. Elliott Electric Supply Co., 548 S.W.2d 441, 444 (Tex.Civ.App.—Tyler 1977, writ ref'd n.r.e.); McDowell v. Miller, 557 S.W.2d 266, 271 (Mo.Ct.App.1977) (a case with strikingly similar facts to the case at bar); See also Marion Machine Foundry & Supply Co. v. Peck, 265 S.W. 195 (Tex.Civ.App.—Amarillo 1924, no writ).

Additionally, Mar-Kit waived any claim that acceptance of the note released Mar-Kit because it failed to affirmatively plead payment or novation. Tex.R.Civ.P. 94.

The court’s conclusion of law that Mar-Kit was indebted to Forrest is based upon the finding of fact that Forrest loaned the money to the corporation pursuant to a request by Stone acting for the corporation. We do not hold, nor should it be implied from this opinion, that Stone had the authority to obligate the corporation on the loan simply because he was president and general manager of the corporation at the time. The law seems to be otherwise. See Collin County Savings & Loan v. Miller Lumber Co., 653 S.W.2d 114 (Tex. App.—Dallas 1983, no writ); Gunn v. Schaeffer, 567 S.W.2d 30 (Tex.Civ.App.—El Paso 1978, no writ); Guaranty Bank & Trust Co. v. Beaumont Cadillac Co., 218 S.W. 638 (Tex.Civ.App.—Beaumont 1920, writ dism’d); Continental Assurance Co. v. Supreme Construction Co., 375 F.2d 378 (5th Cir.1967).

Reading the points of error along with the arguments under those points, we hold that the scope of the points does not include the issue of lack of authority to borrow on behalf of the corporation. State ex rel. City of Colleyville v. City of Hurst, 521 S.W.2d 727, 730 (Tex.Civ.App.—Fort Worth 1975, writ ref'd n.r.e.). We are not allowed to reverse a judgment upon unassigned error. Department of Human Resources v. Wininger, 657 S.W.2d 783 (Tex.1983); Samples Exterminators v. Samples, 640 S.W.2d 873 (Tex.1982). Points of error one through four are overruled.

The next four points of error all concern the fact that Forrest returned the note to Stone. Appellant asserts that Forrest has released Mar-Kit of any obligation by returning the note with a letter containing a covenant not to sue on the note. Even if the court was in error in these matters, appellant Mar-Kit cannot have been harmed. Any release by Forrest of Stone’s obligation under the note would not release the corporation. Any covenant not to sue was between Stone and Forrest alone. Points of error five through eight are overruled.

In point of error nine the appellant Mar-Kit argues that a suit on an oral loan is barred by the two-year statute of limitations in effect at the time the loan was made. Tex.Rev.Civ.Stat. art. 5526 (1925), amended by Act of June 13, 1979, ch. 716, § 1, 1979 Tex.Gen.Laws 1768. Appellee argues that the new four-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5527 (Vernon Supp.1984), applies because it became effective August 27, 1979, before the old two-year statute had barred his action. We agree with appellee.

The loan agreement contained no time for payment and, therefore, was payable on demand. The cause of action accrued and either limitation period began to run from the date of the loan. Cook’s Administrators v. Cook, 19 Tex. 434, 436 (1857). Ap-pellee alleged in his petition that the loan was made November 27, 1978.

When the two-year statute of limitation period runs prior to the amendment extending the statute to four years, article 5527 cannot be applied. Smith v. Kirkwood & Hunter Electric Co., 635 S.W.2d 171 (Tex. App.—Houston [1st Dist.] 1982, no writ).

The result changes when the act amending articles 5526 and 5527 took effect before appellee’s action was barred under the two-year rule because Mar-Kit’s defense of limitations did not become a vested right until the limitation period had actually run.

We base this decision on Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (1887). In 1884, the City of Houston sued Mellinger for back taxes for the years 1875, 1876, 1877, 1878, 1879 and 1880. Mellinger claimed the action for each of the years was barred by the two-year statute of limitations. On July 4, 1879, a statute becáme effective making the defense of limitation no longer available to a delinquent taxpayer. The supreme court held that because the two-year statute of limitations had already run on the taxes due in 1875 and 1876 at the time the law became effective, the city was barred in its action as to those years. The city could sue on the taxes due since 1877. The court reasoned that the defendant taxpayer did not have a vested right to resist the enforcement of the city’s claim until the facts giving him that right by law came into existence. 3 S.W. at 253. The four-year statute of limitations in article 5527 does apply to the Forrest loan whether or not it is based on a purely oral agreement or on a written contract. The ninth point of error is overruled.

Appellee presents one cross-point. He complains that the court erred in limiting attorney’s fees to 10 percent of the note when the uncontroverted evidence supported a much higher award. A court is not mandated to award attorney’s fees equal to those testified to at trial. Bethel v. Butler Drilling Co., 635 S.W.2d 834, 841 (Tex.App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.). The fact that the fees awarded were the same as provided for in the note does not necessarily imply that the court incorrectly concluded that it was limited by the terms of the note. The court could have concluded that the provision in the note was evidence of what was a reasonable fee. Appellee’s cross-point is overruled.

The judgment is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Vera T. JAIMES, Appellant, v. The CITY OF HOUSTON, et al, Appellee.
    No. A14-84-528CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 21, 1985.
    Rehearing Denied March 28, 1985.

      Joe D. Roth, Perdue, Turner & Berry, Houston, for appellant.
    John B. Wallace, Talbert, Giessel, Stone, Barker & Lyman, William T. Fiddes, Jr., James W. Hill, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

This case requires us to determine whether one tortfeasor has an action for contribution against another tortfeasor under TEX.REV.CIV.STAT.ANN. art. 2212a, § 2(b), where the first tortfeasor was found 60% negligent and the latter was found 40% negligent.

Vera T. Jaimes (Jaimes or appellant) and Edward Syzdek were involved in an inter-sectional car accident. Each sued the other. Both also sued the City of Houston (the City or appellee). Jaimes took a non-suit against Syzdek at the close of her case-in-chief. Syzdek did likewise against Jaimes. The City, whose traffic light had malfunctioned in connection with the accident, was found by a jury to have been 60% negligent. Jaimes was found 40% negligent. Syzdek was found 0% negligent.

The trial court determined the damage awards as follows: as a result of her action against the City Jaimes was entitled to 60% of her total damages of $6,600.00, since she was 40% negligent and the City 60%. That amount came to $3,960.00. Syzdek, at 0% negligent, was entitled to the whole of his damages of $18,400.00 with interest, or $18,752.88. The judgment recited that the City was to pay Syzdek the whole amount. Jaimes then would reimburse the City for 40% ($7,501.15) of Syzdek’s damages. Thus Jaimes was to pay the City $7,501.15 less $3,960.00 (her own damages), or $3,541.15.

Jaimes brings two points of error on appeal. In the first she contends that under Article 2212a, Section 2(b), the City is not entitled to contribution from her because its negligence exceeded hers. In the second she argues that the City is not entitled to contribution without proof that it had in fact paid the amount of Syzdek’s judgment. We affirm.

TEX.REV.CIV.STAT.ANN. art. 2212a (Vernon Supp.1985) states, in pertinent part:

Contribution among joint tort-feasors Sec. 2(a) In this section:
(1) “Claimant” means any party seeking relief, whether he is a plaintiff, coun-terclaimant, or cross-claimant.
(2) “Defendant” includes any party from whom a claimant seeks relief.
(b) In a case in which there is more than one defendant, and the claimant’s negligence does not exceed the total negligence of all defendants, contribution to the damages awarded to the claimant shall be in proportion to the percentage of negligence attributable to each defendant.
(c) Each defendant is jointly and severally liable for the entire amount of the judgment awarded the claimant, except that a defendant whose negligence is less than that of the claimant is liable to the claimant only for that portion of the judgment which represents the percentage of negligence attributable to him.

Appellant argues that for purposes of the City’s cross-claim against her, the City must be considered a “claimant” and Jaimes a “defendant.” This argument is superficially appealing, since subsections (a)(1) and (a)(2) of Section 2 appear to include cross-claimants in the definition of “claimant.” Under appellant’s construction of the statute, she is a “defendant” from whom the City “seeks relief.”

Jaimes argues further that under subsection (b), since the claimant’s (the City’s) negligence exceeded that of the “defendant” in the cross-claim (Jaimes), no contribution against her should be allowed. Appellant’s argument suffers from several weaknesses. First, appellant’s interpretation of the statute is self-destructive. If, as appellant argues, the City is the claimant within subsection (b) and Jaimes is the defendant, then, the action against Syzdek having been dismissed, Jaimes is the only remaining defendant. But subsection (b) expressly provides that it applies only to cases in which there is more than one defendant. Appellant’s version of subsection (b) thus logically results in its own inapplicability.

If appellant attempts an about-face, saying that the City is still a defendant and thus there is more than one defendant, then the City’s negligence (60%) would not exceed the total negligence of all defendants (100%). The City as “claimant” would be entitled to contribution “in proportion to the percentage of negligence attributable to each defendant”: 40% from Jaimes and 60% from itself. We doubt that the Legislature intended such a construction.

Appellant attempts to explain the situation which would result from its argument by reminding us that art. 2212a establishes a modified, as opposed to a pure, comparative negligence system. It is natural under such a system, appellant argues, that Jaimes, whose negligence was less than 50%, could recover from the City, but that the City, whose negligence exceeded 50%, cannot recover from Jaimes. The 51% Bar rule, in appellant’s view, makes the rights of the parties unequal.

Appellant’s application of the word “claimant” would only result in the destruction of the very comparative negligence system on which it purports to rely. As applied to this case, forbidding contribution would shift the entire burden of loss from Jaimes to the City, thus resurrecting the all-or-nothing aspect of common law indemnity. That doctrine, which allowed complete indemnity by a tortfeasor in the position of Jaimes against a tortfeasor which had breached a duty to the (former) tortfeasor as well as to the plaintiff, was abolished in B & B Auto Supply v. Central Freight Lines, Inc., 603 S.W.2d 814, 816-17 (Tex.1980). Furthermore, to refuse contribution in this case would violate the basic policy of art. 2212(a), which is to apportion all damages in relation to the percentage of fault found by the jury. Cypress Creek Utility Service Co. v. Muller, 640 S.W.2d 860 (Tex.1982).

Any difficulty in interpreting the word “claimant” within art. 2212a is completely resolved by the words of the statute itself. Subsection 2(b) sets forth the formula for the determination of “contribution to the damages awarded to the claimant.” (Emphasis added). The word “damages” denotes “a sum of money awarded to a [party] injured by the tort of another.” RESTATEMENT (SECOND) of TORTS § 12A (1965). The City was not injured in this case. It sustained no property damage. It has not sought to recover damages from Jaimes. Instead it seeks contribution toward an award paid to Syzdek for his damages. Therefore, since the City has not sought the type of recovery that a claimant is implicitly assumed to have sought in subsection 2(b), it is not a claimant for purposes of this case.

If in the course of the accident appellant’s car had damaged a city-owned fire hydrant, and the City had sued her and Syzdek in a cross-claim for the damage to the hydrant, appellant’s argument would have application. The City would be a claimant under subsection 2(b), and the 51% Bar rule would indeed preclude recovery of damages by the 60%-negligent City.

When, however, a cross-claimant seeks only contribution and thus cannot fulfil the role of a claimant under subsection 2(b), the word “claimant” necessarily refers back to the party or parties seeking damages in the case. Here that party is the plaintiff Syzdek. Thus understood, subsection 2(b), as applied to this case, reads as follows:

“... contribution to the damages awarded to [Syzdek] shall be in proportion to the percentage of negligence attributable to [the City and Jaimes, respectively].

Such a reading is in total harmony with the policy announced in Cypress Creek that all damages should be apportioned in relation to the percentage of fault found by the jury. The trial court, having correctly applied the law in this case, did not err in allowing contribution. Appellant’s first point of error is overruled.

Appellant’s second point of error has been rendered moot. Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Jesse LARA, Appellee.
    No. A14-84-405-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 21, 1985.
    Rehearing Denied March 21, 1985.

      Otaway B. Denny, Jr., R. Dan Fontaine, Houston, for appellant.
    Donna Cywinski, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and ELLIS, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

In this worker’s compensation action the jury found that Jesse Lara suffered permanent partial incapacity and that the percentage reduction of earning capacity was twenty-five percent. The court rendered judgment for appellee, Jesse Lara, on this verdict. Appellant’s points of error concern whether the trial court erred in submitting the issue of partial incapacity on a percentage basis instead of on a dollar and cents basis and whether the evidence was sufficient to support the submission of the issue. Finding no error, we affirm.

Appellant contends in its first point of error that the trial court erred in the form in which it submitted the issue on partial incapacity because the issue called for a finding of the percentage reduction in earning capacity, rather than a dollar and cents finding of the difference between the ap-pellee’s average weekly wage before his injury and his average weekly earning capacity during his partial incapacity. Appellant argues that the form in which the issue was submitted is contrary to Texas Worker’s Compensation Act which provides:

While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty-six and two-thirds percent (66%%) of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity, but in no case more than the maximum weekly benefit set forth in Section 29 of this Article. The period covered by such compensation shall be in no case greater than three hundred (300) weeks; provided that in no case shall the period of compensation for total and partial incapacity exceed four hundred and one (401) weeks from the date of injury. Compensation for all partial incapacity resulting from a general injury shall be computed in the manner provided in this Section, and shall not be computed on a basis of a percentage of disability. (emphasis added)

TEX.REV.CIY.STAT.ANN. art. 8306, § 11 (Vernon 1967). While the statute expressly prohibits computation of partial incapacity on the basis of a percentage of disability, it does not forbid determination of partial incapacity on the basis of percentage reduction of earning capacity. However, appellant argues that when the issue of partial incapacity is submitted on a percentage basis there is a significant danger that the jury will confuse the percentage of disability testified to by the plaintiff’s doctor with the percentage reduction in earning capacity. Any such danger was dispelled in this case by the correct definitions of partial incapacity and earning capacity contained in the charge to the jury. The definitions clearly distinguish reduction in earning capacity from physical disability. Point of error one is overruled.

Appellant contends in its second and third points of error that there was no evidence, or alternatively insufficient evidence, from which the jury could determine appellee’s average weekly wage prior to the accident. Appellant argues that in the absence of sufficient evidence of average weekly wage prior to the accident the jury had no basis to answer special issue # 2(C) which requested:

Find appellee’s percentage reduction of earning capacity, if any, during partial incapacity.

Under the Act the Legislature intended that average weekly wages before injury represent earning capacity before injury. Employers Reinsurance Company v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961). Appellant contends that the jury could not determine the percentage reduction in earning capacity without knowing the earning capacity (average weekly wages) of appel-lee before injury.

The trial court was able to compute the award for partial incapacity using the jury’s finding of a 25 percent reduction in earning capacity, because appellee’s average wage before injury was stipulated. However, the stipulation was not disclosed to the jury. The issue on earning capacity during partial incapacity in the Texas Pattern Jury Charges 22.11 (1970) requires the jury to answer by stating in dollar and cents the difference between his average weekly wage before the injury and his average weekly earning capacity during such partial incapacity. The comment to this issue provides that if the stipulation as to plaintiff’s average weekly wage before the injury is not disclosed to the jury, that P.J.C. 22:12 should be used which requires the jury to find from a preponderance of the evidence plaintiff’s average weekly earning capacity during such partial incapacity. The format of the Pattern Jury Charges supports appellant’s position that when the jury is requested to find the reduction in earning capacity, they need to know the plaintiff's average weekly wage before injury.

Although the stipulation of appel-lee’s average weekly wage before injury was not disclosed, the jury was presented with evidence of appellee’s earning capacity both before and after the injury. Appel-lee testified as to his wage rates and his average weekly working hours before the injury. The jury could approximately determine appellee’s average weekly earning capacity from the evidence. It makes no difference that appellee’s testimony as to his earning capacity does not exactly equal the stipulated amount. The jury was only required by the special issue to make an approximate estimation of the percentage reduction in appellee’s earning capacity. In such case the evidence of average weekly wage before injury does not need to be exact if it does not materially differ from the actual or stipulated amount.

We hold that there was sufficient evidence to support the submission of the special issue # 2(c). Points of error two and three are overruled.

The judgment of the trial court is affirmed in all respects.


author: CADENA, Chief Justice.

text:
    In re ESTATE OF Francisco CASTANEDA, Deceased.
    No. 04-84-00313-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 26, 1985.

      Julio Garcia, Laredo, for appellant.
    Frank D. Barrera, Laredo, for appellee.
    Before CADENA, C.J., and ESQUIVEL and BUTTS, JJ.
   OPINION

CADENA, Chief Justice.

Appellants, three illegitimate children of Francisco Castaneda, appeal from a judgment declaring they are not entitled to share in the estate of their father, who died intestate. We affirm that judgment.

Appellants concede they do not come within the provisions of TEX.PROB.CODE ANN. § 42(b) (Vernon 1980), which provides that an illegitimate child may inherit from its father if (1) the child is born or conceived before or during the marriage of its parents; or (2) it is legitimated by court decree as provided in Chapter 13 of the Family Code; or (3) the father executes a statement of paternity under § 13.22 of the Family Code (or a similar statement properly executed in another jurisdiction).

Appellants base their claim on § 3(b) of the Probate Code which excludes “an unrecognized illegitimate child of the father” from the definition of “child” contained in that section. They argue that since the decedent recognized them as his children each of them is included within the § 3(b) definition of “child” which excludes from the meaning of such term only an “unrecognized” illegitimate child.

In Johnson v. Mariscal, 620 S.W.2d 905, 908 (Tex.Civ.App.—Corpus Christi 1981), writ ref'd n.r.e. per curiam 626 S.W.2d 737 (Tex.) cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982), the court did hold that, because of § 3(b), a recognized illegitimate child is entitled to inherit from its father. However, in the per curiam opinion refusing the application for writ of error, no reversible error, the supreme court pointed out that the question of whether an illegitimate child “may be recognized in any manner other than that provided in Section 42 of the Texas Probate Code” was not properly before it and, therefore, the supreme court expressed no opinion on the holding of the court of civil appeals on that question. Mariscal v. Johnson, 626 S.W.2d 737, 738 (Tex.1982).

Subsequent cases have refused to follow Johnson. In Mills v. Edwards, 665 S.W.2d 153 (Tex.App.—Houston [1st Dist.] 1983, writ dism’d w.o.j.), and Batchelor v. Batchelor, 634 S.W.2d 71 (Tex.App. — Fort Worth 1982, writ refd n.r.e.) the courts refused to follow Johnson and held that § 42(b) of the Probate Code provides the only methods by which an illegitimate child may inherit from its father. We find the reasoning in Mills and Batchelor persuasive and hold that an illegitimate child cannot inherit from its father unless such child comes within the provisions of § 42(b).

The trial court did not err in holding that appellants are not entitled to inherit under the doctrine of adoption by estop-pel. That doctrine is applied only where there is proof of a promise, agreement or contract to adopt. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 974-5 (1951). There is no direct evidence of such an agreement or promise, and the record discloses no act or other circumstances tending to show the existence of such an agreement or promise. In fact, one of the appellants testified that there was no such agreement. The fact that their father supported appellants and referred to them as his children is insufficient to establish an adoption by estoppel. Cavanaugh v. Da vis, supra, 235 S.W.2d at 978; Lowrey v. Botello, 473 S.W.2d 239, 242 (Tex.Civ.App.—San Antonio 1971, no writ).

Appellants’ contention that § 42(b) denies them the equal protection of the law was rejected by our supreme court in Davis v. Jones, 626 S.W.2d 303, 308-9 (Tex.1982).

The judgment of the trial court is affirmed.


author: GUITTARD, Chief Justice.

text:
    Edith Naomi REVIEL, Appellant, v. A.L. LEAL, INC., Appellee.
    No. 05-84-00169-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 27, 1985.
    W.T. “Skip” Leake, Dennis G. Brewer, Inc., Irving, for appellant.
    Alan Mask, Jenkins & Watkins, P.C., Dallas, for appellee.
    Before GUITTARD, C.J., and GUILLOT and ELLIS, JJ.

      . The Honorable James A. Ellis, Chief Justice, Seventh Supreme Judicial District, Retired, sitting by assignment.

   GUITTARD, Chief Justice.

In this case the trial court, after reviewing new evidence at a hearing on a motion for new trial, ordered a remittitur of the damages awarded. We reverse the order of remittitur and restore the original judgment.

A.L. Leal, Inc., sued Edith Naomi Reviel on a construction contract. The trial court rendered judgment on a verdict favorable to Leal for $84,600.93. On motion for new trial, Reviel offered in evidence a letter that was prepared and signed by Leal some three years prior to trial. This letter appears to have reduced the contract price by $6,500. Admittedly, Reviel furnished this letter to her attorney before trial. The trial court overruled the motion for new trial, but ordered a remittitur of $6,500. Reviel then perfected an appeal, but voluntarily dismissed it, under rule 327 a of the Texas Rules of Civil Procedure, without prejudice to Leal’s right to review the order of remittitur.

Leal concedes that if the court had granted a new trial, its discretion to do so would not be reviewable on appeal. He contends, however, and we agree, that the order of remittitur is reviewable because rule 328 of the Texas Rules of Civil Procedure expressly provides that when the party in whose favor the remittitur is made appeals from the judgment, the remitting party may contend “that said remittitur should not have been required either in whole or in part.”

Leal contends further that an order of remittitur must have a basis in the evidence. He argues: (1) that there is no competent evidence to support such an order in this case because the letter was not offered at trial; and (2) that the letter was not shown to be admissible as newly-discovered evidence at the hearing on the motion for new trial. Reviel, on the other hand, argues that the trial court’s discretion to order a remittitur is not limited by the requirements for newly-discovered evidence and that since Leal admitted sending the letter, the court had discretion to consider it in determining whether to order a remittitur.

We cannot agree that the trial court has such broad discretion in ordering a remittitur. The supreme court has directed that in reviewing such an order, we should allow the trial court’s action to stand unless we are of the opinion “that the remittitur ordered by the trial court, when considered in the light of the whole record, would render the order of remitti-tur manifestly unjust.” Flanigan v. Carswell, 159 Tex. 598, 606, 324 S.W.2d 835, 840-41 (1959). We understand that “the whole record” means evidence properly before the trial court and does not include evidence presented at a hearing on a motion for new trial that could have been offered at trial. Otherwise, damage issues would be subject to retrial on evidence not presented to the jury. Rule 270 of the Texas Rules of Civil Procedure forbids introduction of evidence on a controversial matter after the verdict is received. We are not willing to make an exception for evidence that was not offered at trial, but is said to be undisputed, because, although Leal admitted sending the letter, we have no way of knowing what additional evidence might have been presented if the letter in question had been offered at the proper time. Reviel does not suggest that the damages awarded by the jury are excessive in the light of the “whole record” of the evidence presented to the jury. The only reason advanced for the remittitur is the letter in question. Since this letter was not properly before the court, we hold that the order of remittitur is manifestly unjust.

Reviel also contends that the trial court’s allowance of attorneys’ fees for this appeal was improper. We conclude that she has not properly raised this question because she failed to pursue her own appeal.

The order of remittitur is reversed, and the original judgment of the trial court is reinstated. As reinstated, the judgment is affirmed.