source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Paul G. VEALE, Sr.; Paul G. Veale, Jr.; Gary W. Gipson; James H. Parker; and Paul G. Veale & Company, Appellants, v. Larry L. ROSE, Appellee.
    No. 13-84-365-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 29, 1984.
    Rehearing Denied Jan. 3, 1985.
    Second Motion for Rehearing Overruled Jan. 31, 1985.
    Neil Norquest, Ewers, Toothaker & Ewers, McAllen, for appellants.

      Edwin R. Fleuriet, Wiley, Hale & Fleu-riet, Harlingen, for appellee.
   OPINION

PER CURIAM.

The transcript in the above cause was received on the 13th of November, 1984. The transcript was determined to be late, and no motion for extension of time to file the transcript was timely filed. TEX.R. CIV.P. 21c.

The Court, having found that the transcript was not timely filed, is of the opinion that the appeal should be dismissed. TEX. R.CIV.P. 386. The appeal is hereby DISMISSED.

ON REHEARING

This is an appeal from a judgment entered on July 11, 1984. A timely motion for new trial was filed, and the transcript and statement of facts were due to be filed in this Court on October 19, 1984.

On September 26,1984, appellants filed a motion for extension of time to file the statement of facts in the above cause. This motion was granted by this Court on October 4, 1984, and the time for filing the statement of facts was extended to January 17, 1985.

On October 10, 1984, appellants filed a motion to consider the record in the previous appeal. Appellee filed a response to this motion on October 15, 1984, stating that he had no objection to this Court considering all previous pleadings and judgments; however, he did object to the consideration of any evidence introduced in the prior case that is before this Court as a part of the record of the previous appeal. Appellants’ motion to consider the record in the previous appeal was granted on October 25, 1984, six days after the original transcript was due; however, this Court limited the designation of the previous record to pleadings and judgments and instructed appellants to file, within ten days from the granting of this motion, a letter designating the specific pleadings and judgments to be considered by the Court. On November 2, 1984, appellants filed a motion for extension of time for designating specific portions of the record in the previous appeal. This motion was granted by this Court on November 15, 1984, and the time for filing the designation was extended to February 18, 1985.

On November 13, 1984, appellants filed a motion for supplemental transcript and a partial designation of specific previous pleadings and judgments in the record that the Court should consider. The supplemental transcript was also tendered at this time. On November 26, 1984, a check in the amount of $50.00 was tendered by appellants in payment of the filing fee in the above cause. This check was returned to appellants on November 27, 1984, because, pursuant to Tex.R.Civ.P. 388a, the filing fee is not due until the transcript is filed.

Appellants failed to file the transcript in the above cause within the time provided by Tex.R.Civ.P. 386, and a motion for extension of time to file the transcript was not filed pursuant to Tex.R.Civ.P. 21c.

Tex.R.Civ.P. 386 provides, in pertinent part, as follows:

Failure to file either the transcript or the statement of facts within such time shall not affect the jurisdiction of the court, but shall be ground for dismissing the appeal, affirming the judgment appealed from, disregarding materials filed, or applying presumptions against the appellant, either on appeal or on the court’s own motion, as the court shall determine. The court shall have no authority to consider a late filed transcript or statement of facts, except as permitted by Rule 21c. (Emphasis added.)

There being no transcript on file in this Court, the motion to file supplemental transcript was denied, and the appeal was dismissed by this Court on November 29, 1984.

Appellants argue, in their motion for rehearing, that this Court erred in dismissing the appeal without affording notice, pursuant to Rule 388, that the original record which the Court was to consider in the instant case contained a defect. Tex.R. Civ.P. 388 states that, upon receipt of the transcript, the Clerk of the Court shall examine it in order to determine whether or not the appeal has been properly perfected and, in the event the transcript does not show that the appeal has been duly perfected, the clerk shall give notice of the defect to the attorneys of record of the appellant to the end that steps may be taken to amend the record. In the instant case, this Court did not receive a transcript; therefore, no examination could be made to determine if the appeal had been duly perfected, nor could notice of any defect be given. Appellants argue that, because this Court granted their motion to consider the record in previous appeal, this action equals the filing of the transcript. This argument is incorrect. This action is for convenience of the parties and is not a substitute for the filing of a transcript. Even if we stretch the meaning and conclude that some parts of the previous record could constitute a partial transcript, the designation of such purported transcript by appellants was not even filed until after the deadline for filing a correct transcript and after the fifteen-day grace period had expired. Tex.R.Civ.P. 21c.

Appellants further argue that this Court abused its discretion in failing to give the appellants notice, pursuant to Rule 387(b), that the appeal would be dismissed unless the appellants filed with the Court, within ten (10) days, a response showing grounds for continuing the appeal. Tex.R. Civ.P. 387(b) states that the Court may give notice that the case will be dismissed. No notice is mandated by this rule, but, more importantly, the rule does not require this Court to do a useless act. Once the Rule 21c time limit has expired, with no motion for extension having been filed, this Court loses all discretion and authority to grant an extension of time and to permit the filing of a late transcript. Tex.R.Civ.P. 386. See B.D. Click Company, Inc. v. Safari Drilling Corporation, et al., 638 S.W.2d 860 (Tex.1982). Appellant could not have stated any grounds to continue the appeal since this Court has no discretion.

Appellants’ motion for rehearing is overruled.

BENAVIDES, J., not participating.


author: NYE, Chief Justice.

text:
    D.K. SNIDER, Appellant, v. K.D. GREY (Flores), Appellee.
    No. 13-84-202-CV.
    Court of Appeals of Texas, Corpus Christi.
    Jan. 3, 1985.
    Rehearing Denied Jan. 31, 1985.

      Richard C. Smith, Edinburg, for appellant.
    Vernon B. Hill, Jr., McAllen, Ruben R. Pena, Jones, Galligan, Key & Pena, Wesla-co, for appellee.
    Before NYE, C.J., and KENNEDY and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is a child custody case. The mother, appellee, brought suit for modification of a divorce decree seeking to change the custody of her nine (9) year old son (John David) from the father to herself. The case was tried before a jury which found in favor of the mother that a material and substantial change of circumstances had occurred since rendition of the prior court order, and that the best interests of the child required a change of custody to the mother. The father, appellant, filed a motion for judgment non obstante veredicto and a motion for new trial, which were overruled. Judgment was entered conforming to the jury verdict. The father appeals from the entry of the trial court’s judgment.

A rather detailed recitation of the facts is necessary. The parties were divorced in October of 1978. Under the terms of the divorce decree, to which the parties and their attorneys agreed and executed, appellant (father) was appointed the Managing Conservator of John David Grey-Snider (John), the only child. Appellee (mother) was appointed the Possessory Conservator, having access and possession of the child from Wednesday through Saturday of each week. The divorce decree also provided for the automatic change of Managing Conservator from the father to the mother upon the father’s remarriage.

In April, 1983, both parties filed motions to modify the original divorce decree. The mother was seeking to modify the custody arrangement to a full week-to-week period of access because it was not in the child’s best interest to go back and forth in the middle of the week, as was previously done. The father, however, sought to reduce the mother’s visitation rights to two weekends per month. In May, 1983, the father remarried and the mother sought to enforce the automatic change of conserva-torship clause in the divorce decree. On September 1, 1983, the trial judge entered an order voiding that clause in the divorce decree providing for the automatic change of managing conservatorship and severed the clause from the divorce decree. The mother initiated the appellate process, seeking to overturn the trial court’s ruling that voided the clause in the decree. She subsequently dismissed the appeal upon accepting the conditions set out by the trial court for a new trial. The parties agreed and stipulated that the automatic change of custody clause would not be relitigated in a new trial for modification of the parent-child relationship.

On January 3, 1984, testimony was presented to a jury on the mother’s first amended motion to modify custody. Acting on the one special issue submitted to it by the trial court, the jury found from a preponderance of the evidence that “the circumstances of John David Grey-Snider or David K. Snider or Karen Grey Flores have so materially and substantially changed since the entry of the Divorce Decree of October 30, 1978, that the retention of the present Managing Conservator, David K. Snider, would be injurious to the welfare of the child, and that appointment of Karen Grey Flores as the new Managing Conservator would be a positive improvement for the child.”

The trial court entered judgment conforming to the jury verdict, and custody of John was awarded to the mother. The judgment ordered the father to pay to the mother child support in the amount of $300.00 per month, and further ordered the father to pay the mother’s (the movant) attorneys’ fees and the costs of the court.

We must first dispose of a preliminary issue raised by appellant for the first time on appeal. Appellant moves this Court to vacate the order of the 206th District Court modifying the Decree of Divorce entered by the 139th District Court for want of jurisdiction. Specifically, appellant contends that the 139th District Court was the Court having continuing, exclusive jurisdiction as provided by Section 11.05(a) of the Texas Family Code (Vernon Supp.1983), and that no attempt was made to comply with Section 11.06 of the Code in transferring jurisdiction to the 206th District Court. We find no merit in appellant’s motion. The record clearly shows that TEX.R. CIV.P. 18a was implemented pursuant to appellant’s motion for recusal. The record further shows that the Judge of the 206th Judicial District Court was assigned to sit for the Judge of the 139th Judicial District Court.

As such, this is not a case involving conflicting jurisdiction between two district courts, for which § 11.06 of the Family Code may be implemented. The fact that the final order modifying the court decree (as to the managing conservatorship) is styled “In the District Court of Hidalgo County, Texas, 206th Judicial District,” does not affect the validity of the court order. The 139th District Court was established as the court of continuing exclusive jurisdiction, and, therefore, retained continuing jurisdiction over subsequent suits and motions affecting the child. See Trader v. Dear, 565 S.W.2d 233 (Tex.1978); Boriack v. Boriack, 541 S.W.2d 237 (Tex.Civ. App. — Corpus Christi 1976, writ dism’d). Appellant’s motion to vacate is denied.

In his second point of error, the father contends that the trial court erred in denying his motion for an instructed verdict at the close of the movant’s case. He contends that, upon the mother resting her case, there was no evidence of any material and substantial change affecting any party since the entry of the divorce decree which would be injurious to the welfare of the child. He further contends there was no evidence presented to support a jury finding with regard to the issue of “positive improvement” in the appointment of a new managing conservator (i.e., the mother). The mother, however, contends that the evidence that she presented raised fact issues which would, in fact and law, support a modification of the conservatorship.

An instructed verdict is proper only when no material fact issues have been raised. Guy v. Stubberfield, 666 S.W.2d 176,178 (Tex.App. — Dallas 1983, no writ); Kennedy v. Kennedy, 619 S.W.2d 409, 410 (Tex.Civ.App. — Houston [14th Dist.] 1981, no writ). It is error to grant an instructed verdict, or motion for judgment in a non-jury trial, if the record contains any evidence that would support a judgment favorable to the nonmovant. See Kirkwood v. Kirkwood, 663 S.W.2d 34 (Tex.App. — El Paso 1983, no writ); Guthrie v. Ray, 556 S.W.2d 589 (Tex.Civ.App.— Dallas 1977, no writ); Allen v. Nesmith, 525 S.W.2d 943 (Tex.Civ.App. — Houston [1st Dist.] 1975), writ ref’d n.r.e., per cu-riam, 531 S.W.2d 330 (Tex.1975).

The threshold inquiry in custody modifications is whether there has been a material change of circumstances since the entry of the prior order sought to be modified. See Jones v. Cable, 626 S.W.2d 734 (Tex.1981); Neal v. Neal, 606 S.W.2d 729, 731 (Tex.Civ.App. — Beaumont 1980, writ ref’d n.r.e.); In Re Y, 516 S.W.2d 199 (Tex. Civ.App. — Corpus Christi 1974, writ ref’d n.r.e.). The “material change” may relate to the child, the managing conservator, pos-sessory conservator, or other party affected by the prior court order. See § 14.-08(c)(l)(A)(amended Sept. 1,1983). A “material change” in circumstances must be found first before the court examines the other two elements that would justify modification; i.e., that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of a new managing conservator would be a positive improvement for the child. See Dalton v. Doherty, 670 S.W.2d 422, 424 (Tex.App. — Port Worth 1984, no writ); D.W.D. v. R.D.P., 571 S.W.2d 224 (Tex.Civ.App. — Fort Worth 1978, writ ref’d n.r.e.).

Accordingly, we must determine whether the evidence raised a fact issue as to whether there had been a material and substantial change in the child’s or the parents’ circumstances since rendition of the divorce decree five years earlier. To determine if there is any evidence of all of these elements, we consider all of the evidence in its most favorable light in support of the movant’s position, disregarding all of the contrary evidence and inferences. Henderson v. Travelers Insurance Co., 544 S.W.2d 649 (Tex.1976); Guy v. Stubberfield, 666 S.W.2d 176 (Tex.App. — Dallas 1983, no writ); Cameron County Good Government League v. Ramon, 619 S.W.2d 224 (Tex.Civ.App. — Beaumont 1981, writ ref’d n.r.e.).

In discussing material change in circumstances, Justice W.O. Murray, writing for the San Antonio Court of Civil Appeals in Leonard v. Leonard, 218 S.W.2d 296, 301 (no writ), said:

“Material change of conditions which will require a modification of a decree as to the custody of a child is ordinarily such as (1) Marriage of one of the parties. (2) Poisoning of the mind of the child by one of the parties. (3) One of the parties becoming an improper person for the custody. (4) Change in the home surroundings. (5) One of the parties becoming mean to the child, or some other similar material change of conditions.” (Citations omitted.)

Since Leonard, the Texas courts have expanded the list to include all aspects of a child’s physical, mental, emotional and moral well-being to be considered: moral and religious training, see T.A.B. v. W.L.B., 598 S.W.2d 936 (Tex.Civ.App. — El Paso 1980) writ ref’d n.r.e., per curiam, 606 S.W.2d 695 (Tex.1980); cert. denied, 454 U.S. 828, 102 S.Ct. 122, 70 L.Ed. 104 (1981); remarriage of a parent, along with other accompanying facts affecting the welfare of the child, see Evans v. Tarrant County Child Welfare Unit, 550 S.W.2d 144 (Tex.Civ.App. — Fort Worth 1977, no writ); Dohrmann v. Chandler, 435 S.W.2d 232 (Tex.Civ.App. — Corpus Christi 1968, no writ); changing jobs frequently, see In Re Y, 516 S.W.2d 199, 203-04 (Tex.Civ.App. — Corpus Christi Í974, writ ref’d n.r.e.); and emotional health of the child, see L.P.W. v. S.O., 669 S.W.2d 182 (Tex.App. — Fort Worth 1984, no writ); Jeffers v. Wallace, 615 S.W.2d 252 (Tex. Civ.App. — Dallas 1981, no writ).

In the present case, the evidence showed that both parties had remarried at the time of trial. The mother testified that she and Dr. Flores were married in or near Washington, D.C., in October, 1980. She explained that she left the Valley believing that John would be spending the upcoming Christmas holidays with them in Washington, D.C. These visitation plans fell through. She and Dr. Flores then moved back to Edinburg, Texas, because they did not want to risk not seeing John frequently. The mother also testified that she believed that, under the terms of the divorce decree, she would be entitled to enforce the automatic change of managing conserva-torship clause upon the father’s remarriage.

The record shows that the father and his third wife, Susan, were married in May, 1983. Susan Snider has two children of her own from her previous marriage who were also living with the father and John at their farm. The father testified that, at the time he married Susan, he asked his lawyer to initiate proceedings to declare ineffective the disputed clause in the decree, which was ultimately declared void and stricken from the decree by Judge Longoria. The record shows that the father never intended to give up managing conservatorship upon his remarriage as agreed to in the divorce decree.

Susan Snider testified that she first met John in 1980 when he began attending the Montessori School where she was teaching at that time; that she was John’s teacher at Montessori in 1982-83; and that John has been a close friend to her son, John Paul, prior to her marriage to the father. She further testified that she enjoys a close relationship to John and that John’s relationship with his father has remained very close, even through the changes related to their recent marriage.

The mother listed the following specific instances of material change that she feels are harmful to John’s overall welfare: (1) the father’s use and practice of neuro-lin-guistic programming; (2) the father’s disrespect for the law; (3) the father’s lies and deceptions to John; (4) withholding John from his mother; (5) lack of a proper moral example; (6) permission to curse; (7) strange rituals involving raw organs of a deer; (8) lack of religious training; (9) no dental care; (10) no medical care provided in the last two years; (11) the father’s disregard for John’s feelings concerning school and time with his mother; (12) excessive amounts of vitamins; (13) the father has been narrowing John’s social life; (14) no haircuts; (15) instances where John is badly sunburned; and (16) the father’s lack of attention to John’s need for braces.

The evidence at trial favorable to the mother showed that the father presently, as well as prior to his divorce, practices in individual, group, and family therapy and vocational counseling. The father testified that he is a certified practitioner of neuro-linguistic programming (NLP), which he explained as a technique used in achieving various changes with people. The father testified that he used NLP before the divorce, but since that time he has become more involved and improved his skills in this particular practice. The father also testified that he has taught John how to relax when he was upset by using a form of self-hypnosis.

The mother testified that she understands NLP to be a very subtle form of mind control, involving some hypnotic techniques. The mother testified that she is concerned about the fact that both the father and his wife, Susan, are trained in this technique, which she believes can be used without a person’s knowledge, particularly with a child. She testified that this practice is detrimental to John because she believes that certain ideas are implanted in John’s mind in a manipulative manner based on instances in which John has accused her of telling him something that never transpired between them.

Devra Canter, a psychotherapist who was once an associate with the father, testified that she was trained in NLP. She testified that she did not use NLP in her practice because she was concerned about the potential for abuse of power in a therapy situation. Canter opined that NLP can be used on a child such as John.

Concerning the allegations that the father’s behavior shows a disrespect for the law, the father admitted that he did not timely deliver John to the mother in August or September, 1983, in violation of a then-existing court order. The father also testified that he did not deliver John to the mother on October 1, 1983, for the month as the court order stipulated. He further acknowledged that, on October 7, 1983, he sent the mother a letter in which he stated that he would not turn John over to her unless and until she agreed in writing to additional visitation terms (i.e., written guarantee that she would leave John in the public school he was enrolled in). The father testified that he had delivered John in October, 1983, which happened to coincide with the hearing date on a habeas corpus proceeding initiated by the mother.

Paul Burkmeyer, a deputy sheriff, testified that he had difficulty in his attempts to serve civil process on the father. He testified that it took him about eight days to serve the father, and that, in his opinion as an experienced process server, the father was attempting to evade process. He also testified that, on the date of the hearing on the contempt motion, the father approached him and gave him a buck knife and a letter expressing appreciation for his (Burkmeyer’s) professional behavior.

Concerning the allegations of the father’s lies and deceptions to John, the mother and her husband testified at length that the father has misrepresented to John that he was a hero in Vietnam. The father testified that, during his military career, he had been involved in “classified operations” in both North and South Vietnam. He acknowledged, however, that he had previously stated under oath that he has never been to Vietnam. The father also denied telling John that he had rescued a fallen comrade in Vietnam.

The mother testified that the father has misrepresented to John that he (the father) is a Cherokee Indian when, in fact, he is not listed on the rolls of the Cherokee Nation. Dr. Bert Levine, a psychologist who had been seeing John at the mother’s request, testified that, during one of his visits, John told him that his father was a medic in Vietnam; that his father has a Ph.D (the father admitted that he did not have a doctorate degree); and that his father was part Cherokee and part Choctaw.

In connection with the father’s purported Indian ancestry was the incident in which the father admitted that he had John eat a portion of the raw heart and liver of the first deer the child killed. The father testified that John was eight years old when this incident occurred. He explained to John that it was an Indian tradition to show reverence or appreciation for taking the life of an animal which are our gifts from God. He also testified that he did not remember where he had learned this tradition. The father testified that he and John have talked about Cherokee history, other Cherokee family members, and the Cherokee language.

Dr. Charles Hudson, a doctor of anthropology at the University of North Carolina, testified that he has researched extensively and written several articles on Cherokee religion. Dr. Hudson testified that he did not know of any rituals performed by a Southwestern Indian boy on killing his first deer, such as eating a portion of a deer’s heart.

Both the mother and Dr. Flores testified that these matters were important in the sense that they believe the father is perpetrating a charade. The mother contended that these acts are injurious to John because he believes his father’s stories to be true, and when John eventually finds that he has been deceived, it will hurt him and cause him to lose respect for his father.

The record reveals a significant amount of testimony regarding the fact that the father had removed John from the private Montessori School that he attended for three years to a public school. The evidence favorable to appellee mother showed that John expressed his wish to remain at the Montessori School; that he was placed in an accelerated fourth grade class at the public school when he was, in fact, academically closer to a third grade level because of the different teaching and learning approaches between the two schools; that John had experienced a somewhat difficult adjustment period, academically and emotionally, due to the significant changes in his life (i.e., divorce of his parents; getting a new step-mother and step-father; changing schools with a new environment and new friends). The mother testified that the change in schools at a particularly stressful time in John’s life has given him a sense of failure in school.

As stated previously, the record shows ample testimony concerning the allegations of withholding the child from his mother in disregard of a standing court order. Dr. Flores also testified about his past conversations with the father about John in which they ultimately agreed to try alternating weeks, rather than splitting up the week, so there would be minimum disruption in John’s life. Dr. Flores testified that the father’s conduct of withholding John in contravention of their agreement gave rise to the court proceedings seeking to establish set rules on visitation and other matters. The father admitted that he had tape recorded various conversations with the mother and Dr. Flores.

The mother contended that the difference in John’s age from the time of the divorce to the time of the modification suit (i.e., 4 years old to almost 10 years old) is also evidence of a material change in John’s life. She contended that John is at a vulnerable stage in his life, and he needs good moral examples and religious training, which the father has not provided. The father testified that Susan and her two children moved into his house several weeks before they were married and that he and Susan shared the same bedroom at a time when John and her children were present. There was also testimony that the father had not attended church with John within the last year. Concerning the allegations of permission to curse, the father testified that, if John is going to use a cuss word to express himself, he must do it at the farm or on the deer lease. He testified that he does not permit John to use such language around other people.

Concerning the allegations of John’s physical needs, the father admitted that, during the five years since the divorce, he had not taken John to the dentist. The mother testified that John needs orthodontist work and that the father has simply told John to “push on his teeth with his thumb,” rather than get him the braces he needs. The mother testified that, according to the most recent records of John’s physician, his last physical checkup occurred two years ago. The mother testified that only she provides regular haircuts for John. She also testified that, at least three times every summer, when John goes fishing with the father, John is sunburned to the extent that he blisters, and it takes about two weeks to heal. She and Dr. Flores also testified about occasions when John did not want to go hunting or fishing with the father, and that the father did not allow him a choice in those activities.

The record shows that both the father and the mother proffered expert testimony to support their respective positions on the custody modification. The mother’s expert witness, Dr. Bert Levine, testified that he had seen John professionally on five occasions to determine if he had any emotional problems. The expert testified that his interviews with John indicated that he preferred to live with his mother; that John was scared to tell his father that he did not want to live with him any longer; that John was afraid of his father because he has a bad temper; and that the father pressures John to stay at the farm. In conclusion, the mother’s expert testified that John is a bright child; very mature; seems to be well at ease with people; and that John has demonstrated behavior of a well adjusted, mentally healthy child.

We conclude, after considering all of the evidence presented by movant mother, that such evidence raised a fact issue as to whether there was a change of circumstances since the divorce of such a material and substantial nature that retention of the father as managing conservator would be injurious to the child.

Next, we consider all of the evidence presented by the mother to determine whether a fact issue is raised by the evidence regarding whether a change in the managing conservator would be a positive improvement for the child. Testimony of the mother showed that, at the time of the divorce, she was in a state of depression; physically and emotionally exhausted; and aged beyond her years. Since that time, she has fully recovered from any physical ailments and is emotionally stable. The mother testified that she has a very good marriage to Dr. Flores, who is vice-president for Business Affairs at Pan American University in Edinburg, Texas. The mother testified that Dr. Flores is an excellent father to John and that he has been a stabilizing influence (emotionally and economically) for herself and John. Dr. Flores testified that he enjoys a close relationship with John and that he enjoys spending time with John engaging in various activities; (i.e. playing football, baseball, reading, working on the computers at the office). Dr. Flores also testified that they were able to provide John with nice living arrangements.

The mother testified that she now attends church regularly and, in fact, calls herself a “born-again Christian.” She testified that she continues to take John to church with her every Sunday and encourages regular practice of prayer. The mother also testified to the effect that she would continue to have John visit his physician and dentist regularly.

After carefully reviewing the record as a whole, we find that there was ample evidence that would raise an issue of fact on whether a change of custody would be a positive improvement for the child. Having found that these three material issues of fact have been raised by the evidence in the record before us, we conclude, as we must, that the trial court did not err in overruling appellant’s motion for directed verdict. See Guy v. Stubberfield, 666 S.W.2d at 178; Kirkwood v. Kirkwood, 663 S.W.2d at 36; T.A.B. v. W.L.B., 598 S.W.2d at 938. Appellant’s second point of error is overruled.

In his third point of error, the father challenges the factual insufficiency of the evidence to support the jury finding in favor of modification. He contends that the trial court’s judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust, and, therefore, the trial court erred in denying his motion for new trial. See Becerra v. Garibaldo, 526 S.W.2d 780 (Tex.Civ.App.— Corpus Christi 1975, writ ref’d n.r.e.).

We, of course, are guided by well established rules of law in considering legal and factual insufficiency points. Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Aliñar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex. App.—Corpus Christi 1981, writ ref’d n.r. e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 359 (1961).

In summary, the evidence affirmatively shows the following: (1) the father had remarried; (2) the father became a step-father to the two children of his new wife, resulting in a change of the home environment; (3) the parties agreed that the “fifty-fifty” joint custody provisions of the original decree were unworkable and no longer in the best interest of the child; (4) the parties voluntarily changed to a shared custody arrangement that was more beneficial to the child, (i.e. week-to-week basis); (5) that, for various reasons, the father continued to act so as to deprive the child of that beneficial arrangement through his position as managing conservator; (6) the father unilaterally changed the educational arrangements for the child; (7) the child was present at a time when the father and his current wife were living together out of wedlock; (8) that there was a neglect in the religious training by the father; (9) that both the father and his wife were pursuing their interests and involvement in a therapy known as neuro-linguistic programming. There was other evidence that we need not recite that, together with what we have said herein, would justify the jury’s finding of material change of circumstances.

The father contends that, even if the foregoing evidence is sufficient to show a change of circumstances, the evidence to the contrary of any injury related to such change is so overwhelming as to warrant a setting aside of the judgment and remanding for a new trial. When all of the evidence is considered, we are of the opinion that it is factually sufficient to support the jury’s finding that, as a result of the changed circumstances, the father’s continued custody of the child would be injurious to the child’s welfare. The fact that there may be evidence to the contrary is immaterial.

We are also of the opinion that the evidence supports the jury’s finding that a change of custody to the mother would be a positive improvement. The requirements of the Family Code, § 14.08(c)(1)(C), that there must be a “positive improvement,” invites comparison between the environment provided by the father and the new environment provided by the mother. It is reasonable to conclude, without the necessity of additional testimony, that the appointment of appellee as the new managing conservator would be a positive improvement for the child’s future welfare.

We hold, after considering all the evidence, that the judgment of the trial court is not so against the great weight and preponderance of the evidence as to be manifestly unjust. See L.P.W. v. S.O., 669 S.W.2d 182 (Tex.App. — Fort Worth 1984, no writ); T.A.B. v. W.L.B., 598 S.W.2d at 940; In re Y, 516 S.W.2d at 204. Appellant’s third point of error is overruled.

In his first point of error, the father contends that the trial court erred in admitting testimony as to alleged family violence occurring prior to the entry of the divorce decree. Appellant (father) has the burden to affirmatively show that the trial court erred by admitting the evidence and that such error was reasonably calculated to and probably did cause rendition of an improper judgment. TEX.R.CIV.P. 434. We are required to review the entire record and grant a reversal only if we are convinced that a different verdict would have been rendered but for the error. Ramirez v. Wood, 577 S.W.2d 278, 289 (Tex.Civ.App. —Corpus Christi 1978, no writ); Otto v. Otto, 438 S.W.2d 587 (Tex.Civ.App. — San Antonio 1969, no writ). The father complains that the trial court’s most critical example of error was in admitting the following testimony between counsel for ap-pellee (mother) and the father:

“BY MR. PENA:
Q. Isn’t it true David, that Karen wanted that change of managing con-servatorship in the original divorce decree because ...
MR. SMITH: Your Honor, I’m going to object to him asking this witness why she wanted the clause in the divorce decree because it goes beyond the scope of inquiry as to something that she had in her mind before the divorce decree was entered, and I object to that being not material or relevant to the issues in this case. And, furthermore, that whatever her reason is, it would be more prejudicial to the jury in being able to reach a fair decision as to what’s happened since the divorce than it would be valuable to prove any change in circumstances detriment to the child as a positive improvement on behalf of the Movant.
THE COURT: It will be overruled.
THE WITNESS: Can you repeat the question, please?
BY MR. PENA:
Q. I certainly will, David. Isn’t it true that the reason Karen wanted that automatic change of conservatorship, managing conservatorship on your remarriage was due primarily to the fact that she did not want to see John subjected to the same, or have John witness the same physical abuse that she suffered while she was married to you?
A. It’s not true.”

Outside the jury’s presence, the mother’s attorney obtained permission to cross-examine appellant on his earlier testimony that the clause was inserted in the decree at the mother’s insistence. The record clearly shows that the trial court intended to limit the scope of inquiry as to the purpose of the clause as part of the divorce decree that was admitted in evidence. Further, when the issue appeared again, the trial court sustained appellant’s objection to any testimony regarding violence that occurred before the divorce decree. We find that error, if any, in admitting the above testimony was harmless.

In addition, appellant complains generally of the admission of any and all evidence of alleged violations of prior court orders in the face of an agreement not to relitigate the same. We have reviewed the parties’ “Agreement Not to Relitigate Automatic Conservatorship” and the Order Granting a New Trial and find there was no such agreement not to relitigate the matters now complained of by appellant. Further, appellant points to no specific objections and rulings in which he contends he was harmed in such a manner as to constitute reversible error. TEX.R.CIY.P. 434.

After carefully reviewing the voluminous record (in excess of 2,000 pages of testimony), we find that the record as a whole does not afford a substantial basis for the reasonable belief that the error, if any, in admitting the evidence complained of by appellant caused or may have caused the rendition of an improper judgment. There is ample evidence, both competent and relevant, to support the judgment of the trial court. Appellant’s first point of error is overruled.

Because of our previous holdings concerning the legal and factual sufficiency of the evidence, it will be unnecessary for us to consider appellant’s fourth point of error challenging the award of attorneys’ fees in the event of a reversal by this Court on the merits of the case. TEX.FAM. CODE ANN. § 11.18 authorizes the award of reasonable attorneys’ fees “[i]n any proceeding under this subtitle” (i.e., that affecting the parent-child relationship). The award of such fees in this type of action is within the discretion of the trial court. Havis v. Havis, 657 S.W.2d 921 (Tex.App.— Corpus Christi 1983, no writ); Neal v. Neal, 606 S.W.2d 729, 731 (Tex.Civ.App.— Beaumont 1980, writ ref’d n.r.e.). Appellant’s fourth point of error is overruled.

The judgment of the trial court is AFFIRMED.

      . In the temporary orders signed by the 206th District Court the following appears:
      ‘The Court, having considered all the pleadings and heard the arguments of counsel, finds that it has jurisdiction to decide this cause by virtue of the continuing jurisdiction of the 139th District Court over said cause; the fact that both parties and the subject child reside in Hidalgo County, Texas; the fact that the 139th District Court recused itself from further participation in this cause; and from the fact that the Presiding Judge of the 5th Administrative Judicial District assigned the subject cause to this Court to hear and decide.” See TEX.REV.CIV.STAT.ANN. art. 200a (Vernon Supp.1984).

      . Act of June 19, 1975, Ch. 476, § 29 TEX. SESS.LAW SERV. 1265 (Vernon), amended by Act of June 17, 1983, Ch. 424, § 9 TEX. SESS.LAW SERV. 2365 (Vernon).

      . By counterpoint, the mother contends that the pleadings of both parties admit that there existed a material and substantial change in circumstances; therefore, both parties are deemed to have admitted the same as a matter of law, not requiring further proof. See O’Hara v. Hexter, 584 S.W.2d 310 (Tex.Civ.App. — Dallas 1979, no writ). The father’s motion to modify, in which he alleged the standard “material change” requirement, was filed for the purpose of modifying the decree as to the mother’s visitation privileges. The mother’s first amended motion to modify alleged a "material change” for change of custody purposes. The prerequisite proof to justify modification of visitation is not the same required for a change of custody. See Hollis v. Hollis, 508 S.W.2d 179, 181 (Tex.Civ.App.— Amarillo 1974, no writ). We do not agree that the parties’ respective pleadings stipulated to the effect that the movant (mother) need not prove up this key element to warrant a change of custody under § 14.08(c)(1). See also § 14.-08(c)(2).


text:
    The REUBEN H. DONNELLEY CORPORATION, a Delaware Corporation, Appellant, v. Thomas R. McKINNON d/b/a Busted 5 Ranch, Inc., Appellee.
    No. 13-84-117-CV.
    Court of Appeals of Texas, Corpus Christi.
    Jan. 10, 1985.
    Rehearing Denied Jan. 31, 1985. Rehearing Overruled Feb. 21, 1985.

      Wallace P. Finrock, Dallas, for appellant.
    Craig H. Vittitoe, Harlingen, for appel-lee.
   OPINION

PER CURIAM.

On December 1, 1981, appellee, Thomas R. McKinnon, purchased from Albert A. Connell a franchise business known as Thrifty Rent-A-Car. In several discussions prior to the sale, McKinnon had inquired about and was assured by Connell that advertising had been secured in the upcoming year’s Yellow Page Directory. Connell had exhibited an order form contract, signed September 28,1981 by Thrifty Rent-A-Car’s then general manager with Reuben H. Donnelley (hereinafter R.H.D.), for a triple half-column ad in the Rio Grande Valley Directory to be published in February 1982. No payment was due until the advertisement appeared. The ad failed to appear. McKinnon ultimately sued Albert Connell and R.H.D., alleging negligence and violations of the Texas Deceptive Trade Practices Act, Texas Business and Commerce Code, sec. 17.41 et seq. (Vernon Supp.1984). R.H.D. answered that it had cancelled the advertising upon the instruction of the party placing the ad and denied that it had any contractual or other obligation to McKinnon. Connell answered, denying cancellation. Before trial, Connell was dismissed as a party defendant. Evidence was then presented to a jury which answered twelve special issues. The jury found, inter alia, that Connell did not cancel the Yellow Page advertisement, that R.H. D.’s cancellation was negligent, and that R.H.D. breached its express warranty to McKinnon d/b/a Thrifty Rent-A-Car to provide advertising. The trial court entered judgment against R.H.D. for $212,000.00 plus attorney’s fees.

R.H.D. brings forward thirteen points of error. Appellant’s first, second and fourth points of error are all based on the premise that R.H.D. had no contractual relationship with McKinnon. We disagree.

As noted earlier, Thrifty Rent-A-Car’s general manager entered into a contract for the advertisement on September 28, 1981, shortly before the directory’s October 9 closing date. About two months after the advertising order was placed, and after the directory’s closing date, but before the ^publication date, Connell and McKinipoh contracted for the sale of the fraucKise business known as Thrifty Rent-¿¿Gav. Appellant does not assert on appeal that the advertisement contract was not “transferred” by the contract for sale of the franchise; his argument is that the transfer was unauthorized, that appellant had no notice of it, and that, therefore, the transfer was ineffective to cause appellant any obligation to appellee. Appellant characterizes this transfer as an assignment, points to the following provision in its order form contract with Connell and asserts that the order was not assignable:

12. This agreement shall inure to and be binding upon the successors and assigns of the parties hereto; provided, however, that it shall not be assigned without the prior written consent of RHD.

Appellee, for his part, characterizes the transfer as a succession and asserts that the above provision is inapplicable to this case. We find, for the following reasons, that the label descriptive of this transfer is not critical to the outcome of the case and that, under the circumstances of this case, RHD had a contractual obligation to provide yellow page advertising to the Thrifty Rent-A-Car franchise.

If appellee is classified as a “successor,” the requirement of written consent to make the transfer effective would be inapplicable, and, therefore, the transfer would be valid. The result, however, is no different if appellee is classified as an “assignee,” because the contract term only forbids assignment; it does not render an assignment ineffective. See Restatement, Second, Contracts § 322(2) which provides, in part:

A contract term prohibiting assignment of rights under the contract, unless a different intention is manifested,
(b) gives the obligor a right to damages for breach of the terms forbidding assignment but does not render the assignment ineffective.

Similar provisions, although limited in scope, are contained in the Texas Business and Commerce Code. See §§ 2.210; 9.104(6) and 9.318(d). See also Gips v. Red Robin Corporation, 366 S.W.2d 853 (Tex. Civ.App. — Houston 1963, writ refd n.r.e.). Accordingly, we disagree with appellant that it had no contractual duty to provide advertising to McKinnon’s Thrifty Rent-A-Car. Appellant’s first, second, and fourth points of error are overruled.

In his third point of error, appellant argues that, even if a contract did exist between appellant and appellee, the trial court awarded excessive damages as the order form contract provided that in the event of “any error or omission in the publication of or failure to publish any item ... the liability of RHD ... shall be limited to the charges for the publication in such directory of the item of the advertising involved....” Appellant cites Wade v. Southwestern Bell Telephone Co., 352 S.W.2d 460 (Tex.Civ.App. — Austin 1961, no writ) for the proposition that these limiting clauses for errors and omissions are valid and enforceable. Wade, however, was an action for breach of contract rather than negligence or deceptive trade practices. There are several Texas cases where contractual provisions limiting damages have not been enforced. For example, in DeKalb Hybrid Seed Company v. Agee, 293 S.W.2d 64 (Tex.Civ.App. — Beaumont 1956, writ ref’d n.r.e.), an order form for baby chicks contained a clause limiting the seller’s liability to the price of the chicks. The Court of Civil Appeals held that the buyer’s measure of damages was not limited to the purchase price where his cause of action was for fraud (an intentional tort) rather than for the rescission of the contract. See also F.H. Woodruff & Sons v. Brown, 256 F.2d 391 (5th Cir.1958); Andrews v. Powell, 242 S.W.2d 656 (Tex.Civ.App. — Texar-kana 1951, no writ). Recently, this Court was presented with the same issue, but, because of the disposition, was not required to address whether recovery for lost profits is foreclosed by a contractual limitation of liability. See Goldson v. Southwestern Bell Telephone Co., 659 S.W.2d 902 (Tex.App. — Corpus Christi 1983, no writ). In addition, the Texas Supreme Court was not required to decide that issue in White v. Southwestern Bell Telephone Company, Inc., 651 S.W.2d 260 (Tex.1983).

We now address that issue. Appellant contends that similar provisions have been upheld in sixteen states and should be upheld in Texas. See McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp., 95 Ill.2d 68, 69 Ill.Dec. 183, 447 N.E.2d 400 (1983), where the Illinois Supreme Court lists those jurisdictions upholding the validity of such provisions. More recently, however, the Wisconsin Supreme Court, in a negligence case, held unenforceable a limiting provision similar to the one in this case. Discount Fabric House v. Wisconsin Telephone Company, 117 Wis.2d 587, 345 N.W.2d 417 (1984). See also Thomas v. General Telephone Directory, 127 Mich.App. 788, 339 N.W.2d 257 (1983). For reasons stated in these cases, we hold that appellant may not limit its liability for negligence. Appellant’s third point of error is overruled.

,[4] In his fifth point of error, appellant argues that the trial court erred in submitting special issues based on negligence, because the appellee’s rights, if any, were based on contract. Cases similar to this one have been brought on negligence theory. See Discount Fabric House v. Wisconsin Telephone Company, 117 Wis.2d 587, 345 N.W.2d 417 (1984); Southwestern Bell Telephone Company v. Reeves, 578 S.W.2d 795 (Tex.Civ.App. — Houston [1st Dist.] 1979, writ ref’d n.r.e.); Thomas v. General Tel. Directory Co., 339 N.W,2d 257. Appellant’s fifth point of error is overruled.

In his sixth point of error, appellant contends that McKinnon was not a consumer under the Deceptive Trade Practices Act. In Bancroft v. Southwestern Bell Telephone Company, 616 S.W.2d 335 (Tex. Civ.App. — Houston [14th Dist.] 1981, no writ), the Houston Court of Appeals held that Bancroft was not a consumer because he did not pay for and was not charged for the advertisements which were omitted from the Yellow Page directory. We choose not to follow Bancroft, finding it in conflict with our holding in McCrann v. Klaneckey, 667 S.W.2d 924 (Tex.App.— Corpus Christi 1984, no writ). Appellant’s sixth point of error is overruled.

In his seventh point of error, appellant complains of the trial court’s award of damages. Although appellant has incorporated essentially two different points of error under this one point, we will address both arguments as each concerns the trial court’s award of damages.

As noted above, twelve special issues were submitted to the jury. The first three concerned appellee’s negligence claim through which the jury found that appellant’s negligence caused appellee damages of $70,006. Issues four through ten concerned appellee’s claim under the D.T.P.A. The jury found that appellant breached an express warranty to appellee and (under special issue number seven) that such conduct was a producing cause of damages to appellee. When the jury answered special issue number eight, which had been tied to its affirmative answer of issue number seven, it refused, however, to award appellee actual damages. Continuing through the succession of issues, the jury was instructed to answer special issue number ten (concerning additional damages) only if it had answered issue eight “yes” and only if the breach of the warranty had been committed knowingly. The jury, however, chose to answer special issue ten and determined that $140,000 was the amount of additional damages.

The trial court’s judgment was against appellant for the amount of $212,000, plus attorney’s fees; the judgment fails to explain how the trial court arrived at this amount. Appellant argues that the trial court should not have awarded appellee any additional damages in this case, the jury having found no actual damages under the D.T.P.A. claim. Appellee contends that the award of $70,006 under the negligence action is sufficient to show actual damages and argues that the additional damages should be sustained. We disagree with appellee’s position.

The trial-court’s submission of the damage issues followed the holding in Lucas v. Nesbitt, 653 S.W.2d 883 (Tex.App. —Corpus Christi 1983, writ ref'd n.r.e.) wherein this Court held that it was reversible error for the trial court not to submit separate issues on negligence damages and D.T.P.A. damages, because failure to submit the damages issues in that form prevents the trial court from knowing what portion of the damages were attributable to each cause of action. In the present case, the jury found that appellee should be awarded no damages as a result of appellant’s violation of the D.T.P.A. Since special issue number ten (additional damages) was tied exclusively to the D.T.P.A. cause of action, and since additional damages will not be awarded in the absence of actual damages, City Products Corp. v. Berman, 610 S.W.2d 446 (Tex.1980), appellant’s assertion that the trial court erred in apparently awarding $140,000 in additional damages to appellee is meritorious.

Appellant also argues that the evidence is insufficient to show that appellee suffered $70,006 in lost profits. Appellant contends that, in spite of expert testimony which established lost profits at that amount, the evidence remains too speculative to determine damages with a reasonable degree of certainty. We note that appellant’s brief in this regard is quite brief and contains no authority. We have, however, reviewed the sufficiency of the evidence which was presented through the testimony of two expert witnesses and members of the McKinnon family.

Professor Carl Rush, director of the Bureau of Business and Economic Research at Pan American University testified that yellow page advertising was important to Thrifty Rent-A-Car because of the character of its car renters, whom he described as largely first-time customers who rely on the phone directory to pick a rent-a-car agency. Rush explained that, based on figures furnished by McKinnon, he estimated that Thrifty lost gross revenues of $107,194.00 as a result of no yellow page advertising. Wayne Beneke, a Certified Public Accountant, testified that, based upon his research, Thrifty Rent-A-Car would have made $70,006 in additional profits from February 1982 to January 1983 if its gross revenues had been $107,000.00 higher.

Appellant argues that any comparison to increased revenue after February 1983 “is not proper nor relevant because it included business from lots in Brownsville and McAllen that were not in existence during earlier years” and that part of the increase after February 1983 was due to a government contract. The record does not support appellant’s assertions. McKinnon specifically testified that he had the government contract in the year when Thrifty did not have yellow page advertising. The record also fails to show that additional “lots” were opened in Brownsville and McAllen which might have altered the figures used by the experts in determining lost profits. To the extent that appellant's seventh point of error challenges appellee’s showing of lost profits, it is overruled. To the extent which it challenges the award of additional damages, it is sustained.

Appellant’s eighth point of error challenges the trial court’s award of attorney’s fees. We agree with appellant that the trial court erred. In the absence of judgment for actual damages under the D.T.P.A., an award of attorney fees cannot stand. Freedom Homes of Texas, Inc. v. Dickson, 598 S.W.2d 714 (Tex.Civ.App.— Corpus Christi 1980, writ ref’d n.r.e.). Appellant’s eighth point of error is sustained.

In his ninth, tenth, eleventh, twelfth and thirteenth points of error, appellant contends that various issues should not have been submitted to the jury due to insufficient or no evidence. These points contain no authority, no citation to the record, and no argument. Points of error not supported by argument and authority are waived. Campion v. Hochheim Prairie Farm Mutual Insurance Assoc., 644 S.W.2d 795 (Tex.App. — Corpus Christi 1982, writ ref’d n.r.e.). Tex.R.Civ.P. 418. See La Sara Grain Company v. First National Bank of Mercedes, 673 S.W.2d 558 (Tex.1984) (Opinion on Motion for Rehearing). These points are overruled.

The judgment of the trial court is affirmed in part and reversed and rendered in part. That part of the trial court’s judgment in favor of the appellee in the amount of $70,006 on his negligence action against appellant, R.H.D. is AFFIRMED. The remainder of the trial court’s judgment is REVERSED and JUDGMENT RENDERED that appellee take nothing on his D.T.P.A. cause of action or his claim for attorney’s fees. Costs are adjudged fifty percent against appellant and fifty percent against appellee.

      . Contracts transferred in the course of a sale of business have been treated as assignments. Linen Service Corporation of Texas v. Myres, 128 S.W.2d 850 (Tex.Civ.App. — Galveston 1939, no writ). The term “successor" is apt and appropriate to designate one to whom property descends. When applied to corporations, the term does not normally connote an assignee, but in-eludes corporations becoming invested with the rights and assuming the burdens of another corporation by amalgamation, consolidation, or duly authorized succession. International Association of Machinists, Lodge No. 6 v. Falstaff Brewing Corporation, 328 S.W.2d 778 (Tex.Civ. App. — Houston 1959 no writ).


author: WHITHAM, Justice.

text:
    Joe WILLIAMS, Appellant, v. CITY OF TOM BEAN, Appellee.
    No. 05-84-00866-CV.
    Court of Appeals of Texas, at Dallas.
    Jan. 16, 1985.
    Supplemental Opinion Feb. 7, 1985.
    On Motion for Rehearing March 13, 1985.

      Bill W. Miller, Sherman, for appellant.
    Roger D. Sanders, Sherman, for appellee.
    Before AKIN, WHITHAM and DEVA-NY, JJ.
   WHITHAM, Justice.

Appellant, Joe Williams, appeals a temporary injunction requiring compliance with an ordinance of appellee, City of Tom Bean. We agree with Williams’ contention that the trial court erred in not requiring bond for security in its order granting the temporary injunction. Accordingly, we instruct the trial court to correct such error and we proceed to consider this appeal as if such error had not occurred. Jeffries v. Evans Division Royal Industries, 510 S.W.2d 579 (Tex.1974). Consequently, we address Williams’ remaining point of error and conclude that the trial court did not err in granting a temporary injunction even though the petition for injunction was not verified. Depending upon further record certified to us by the clerk of the trial court in accordance with our instructions, we will either affirm or reverse the trial court’s judgment granting temporary injunction or dismiss this appeal as moot.

TEX.R.CIV.P. 684 provides that “[i]n the order granting any temporary restraining order or temporary injunction, the court shall fix the amount of security to be given by the applicant.” The order granting temporary injunction provides that the city “is not required to file a bond in this matter.” The use of the word “any” in the first sentence of rule 684 would appear to make it mandatory for all persons and entities to make bond before securing a temporary restraining order or a temporary injunction absent a statute, rule, charter provision or ordinance exempting the person or entity. Cone v. City of Lubbock, 431 S.W.2d 639, 646 (Tex.Civ.App.— Amarillo 1968, writ ref’d n.r.e.). At oral argument, the city conceded that it was not a home rule city. Rather, the trial court found that the city was “an incorporated general law city.” We hold, therefore, that the use of the word “any” in the first sentence of rule 684 makes it mandatory for the city to make bond before securing a temporary injunction absent a statutory or rule provision exempting the city. Thus, we must decide whether the city is exempt.

To establish an exemption, the city relies upon the following cases, statutes and rule of civil procedure: Corpus Christi Gas Co. v. City of Corpus Christi, 46 F.2d 962 (5th Cir.1931), cert. denied, 284 U.S. 636, 52 S.Ct. 19, 76 L.Ed. 541; Cone v. City of Lubbock, 431 S.W.2d 639 (Tex.Civ.App.— Amarillo 1968, writ ref'd n.r.e.); West v. Ellis County, 241 S.W.2d 344 (Tex.Civ. App. — Waco 1951, no writ); Smith v. City of Dallas, 36 S.W.2d 547 (Tex.Civ.App.— Texarkana 1931, writ dism’d); Athens Telephone Co. v. City of Athens, 163 S.W. 371 (Tex.Civ.App. — Dallas 1914, writ ref’d); TEX.REV.CIV.STAT.ANN. arts. 279a (Vernon 1963), 1174 (Vernon 1963), and 2072 (Vernon 1964); TEX.R.CIV.P. 684. With the exception of Athens Telephone Co. and West, the cases cited involve home rule cities with city charter provisions providing the exemption. Consequently, we conclude that eases involving home rule cities are not controlling in the present case. West decided that article 279a exempted counties from giving temporary injunction bond because the statute exempted counties from giving bonds in securing any extraordinary writs. 241 S.W.2d at 346. Article 279a does not refer to cities. Accordingly, we conclude that West is not controlling in the present case. Athens Telephone Co. involved a city incorporated under the general laws. Tex.Rev.Civ.Stat. art. 768 repealed by Act of 1926, ch. 16, 30, Tex.Gen. Laws, Local & Spec. 23, provided that “[i]t shall not be necessary in any action, suit or proceeding in which the city, accepting the provisions of this title, shall be a party, for any bond, undertaking or security to be executed in behalf of the city.” Based on that statute, Athens Telephone Co. held that the city was exempt from giving a temporary injunction bond. Article 768, however, was replaced by present TEX. REV.CIV.STAT.ANN. art. 2072. As pointed out in Cone:

Art. 2072, Revised Statutes, 1925, superseded Art. 768 and provides only that “security for costs shall not be required of the State or any incorporated city or town in any action, suit or proceeding, * * * ” leaving out the exemption from bond in injunctions.

431 S.W.2d at 645 (emphasis in original). We conclude that Cone properly recognized the distinction between an exemption from giving security for costs and an exemption from giving security to the adverse party before issuance of a temporary injunction. Therefore, inasmuch as the statutory basis for the exemption found for a city incorporated under the general laws no longer exists, we conclude that Athens Telephone Co. is not controlling in the present case. Thus, we conclude that none of the cases relied on by the city exempt the city from giving bond for security before issuance of the temporary injunction.

We turn then to consider the statutory and rule provisions relied upon to exempt the city. The city points to rule 684 and to TEX.REY.CIV.STAT.ANN. arts. 279a, 1174, and 2072 as containing the required exemption. As to rule 684, we find no exemption for the city in our reading of the rule. Moreover, Cone found no exemption for a city in the statute which was the source of rule 684. Tex.Rev.Civ.Stat.Ann. art. 4649 repealed by Act of 1939, ch. 25, 1 Tex.Gen.Laws Local & Spec. 201, was the source of rule 684. In Cone it was held that article 4649 afforded no exemption for a city:

Under title 76 Injunctions, V.T.C.S., Art. 4649 provides, inter alia, “ * * * before the issuance of the writ of injunction, the complainant shall execute and file with the clerk a bond to the adverse party * * conditioned * * * that he will pay all sums of money and costs that may be adjudged against him if the injunction be dissolved in whole or in part.” No exemption is provided for a city in Art. 4649.

431 S.W.2d at 645.

Likewise, as shown in the above quotation, Cone held that article 2072 provided no exemption for a city. Consequently, we conclude that neither rule 684 nor article 2072 afford exemption to the city. As to article 1174, that statute pertains to home rule cities and provides that “[a]ll cities may institute and prosecute suits without giving security for cost and may appeal from judgment without giving supersedeas or cost bond.” Since article 1174 is applicable only to home rule cities, we conclude that article 1174 is not controlling in the present case. Accordingly, we conclude that article 1174 affords no exemption to the city in the present case. Moreover, since article 279a does not refer to cities, we conclude that article 279a affords no exemption to the city in the present case.

It follows, and we so hold, that rule 684 and articles 279a, 1174, and 2072 do not provide exemption from that bond to the adverse party required by rule 684:

[Conditioned that the applicant will abide the decision which may be made in the cause, and that he will pay all sums of money and costs that may be adjudged against him if the restraining order or temporary injunction shall be dissolved in whole or in part.

We conclude, therefore, that the city has failed to identify any statutory or rule provision exempting the city from the temporary injunction bond required by rule 684. It follows, therefore, that the city was required to execute and file the temporary injunction bond provided for in rule 684. Consequently, the trial court erred in concluding that the city “is not required to file a bond in this matter” and in failing to require that the city file the temporary injunction bond provided for in rule 684. We express no opinion on the question whether a home rule city created pursuant to TEX.CONST. art. 11, § 5 may by city charter provision or ordinance exempt itself from the bond required by rule 684. That question is not before us in the present case. See Cone, 431 S.W.2d at 646-48.

When the trial court errs in failing to require an injunction bond, we must direct the trial court to correct such error and then proceed to consider the appeal as if such error had not occurred. Jeffries, 510 S.W.2d at 579. We recognize that Jef-fries can be read to require that we abate this appeal and withhold disposition of Williams’ remaining point of error until the amount of an injunction bond has been fixed by the trial court and the bond filed by the applicant. We do not read Jeffries, however, to prohibit disposition of the entire appeal if convenient to do so. The briefs in the present case are open and before us. We conclude that it would be convenient for us to dispose of Williams’ remaining contention at this time. Therefore, we reach Williams’ remaining point of error contending that the trial court erred in not requiring a verified petition after Williams made known to the court that the city’s petition was not verified.

TEX.R.CIV.P. 682 provides that “[n]o writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge verified by his affidavit and containing a plain and intelligible statement of the grounds for such relief.” The city’s petition was not verified by affidavit. Williams did not challenge the sufficiency of the petition by special exception or other pleading which could be treated as raising the issue of lack of verification. See, Kern v. Treeline Golf Club, Inc., 433 S.W.2d 215, 216 (Tex.Civ.App.— Houston [14th Dist.] 1968, no writ). Instead, Williams called the trial court’s attention to the missing verification by an oral objection made during the course of a witness’ testimony at the hearing on temporary injunction. The trial court overruled Williams’ objection. In the present case, however, hearing was had on the petition for injunction after notice. When hearing is had after notice, defective verification does not preclude granting the writ. Chesterfield Finance Co. v. State, 331 S.W.2d 368, 369 (Tex.Civ.App. — Waco 1959, writ ref’d). It is not essential that the petition be sworn to because there was a full and complete hearing had before the court. Acme Letter Shop v. State, 342 S.W.2d 770, 772 (Tex.Civ.App. — Austin 1961, writ ref’d n.r.e.). It follows, and we so hold, that the trial court did not err in granting a temporary injunction even though the petition for injunction was not verified.

We direct the trial court to fix the amount of security to be given by the city as required by rule 684 within ten days from the date of this opinion. We direct the city to file the bond with the clerk of the trial court within fifteen days from the date of this opinion. We direct the clerk of the trial court to certify to this court a copy of the order fixing the amount of such injunction bond and to certify to this court a copy of the bond filed by the city. We direct that both the certified copies of the order and the bond be filed with the clerk of this court by the clerk of the trial court within twenty days from the date of this opinion. If certified copy of the order fixing the amount of the injunction bond and certified copy of the bond filed by the city are timely filed in this court, the trial court’s judgment granting a temporary injunction will be affirmed and all costs in the trial court and in this court taxed against Williams. If certified copy of the order fixing the amount of the injunction bond and certified copy of the bond filed by the city are not timely filed in this court, the trial court’s judgment granting a temporary injunction will be reversed, the temporary injunction vacated and all costs in the trial court and in this court taxed against the city. In the event the city fails to file the bond with the clerk of the trial court within fifteen days from the date of this opinion, the trial court is instructed to immediately dissolve the temporary injunction heretofore granted upon notice of such failure from Williams. The trial court has to dissolve the temporary injunction for failure to file the bond in the present case in light of the Supreme Court’s holding in Jeffries. See Evans Division — Royal Industries v. Jeffries, 516 S.W.2d 214, 215-16 (Tex.Civ.App. — Houston [14th Dist.] 1974, no writ). We direct the clerk of the trial court to certify to this court a copy of the order dissolving the temporary injunction be filed with the clerk of this court by the clerk of the trial court within twenty days from the date of this opinion. In the event the trial court dissolves the temporary injunction, this appeal will be dismissed as moot. 516 S.W.2d at 216.

SUPPLEMENTAL OPINION

No certified copy of the trial court’s order fixing the amount of the injunction bond and no certified copy of any injunction bond filed by the city were timely filed in this court. Consequently, the trial court’s judgment granting a temporary injunction is REVERSED and the temporary injunction VACATED. All costs in the trial court and in this court are taxed against the city.

ON MOTION FOR REHEARING

Williams failed to file a motion for rehearing. The city filed a motion for rehearing with attachments, including the affidavit of the district clerk of Grayson County. The city’s motion does not assert error in our original opinion. Instead, the city relies on the attachments to its motion to establish that a trial court’s certified copy of the order fixing the amount of the injunction bond and a certified copy of the injunction bond filed by the city were properly and timely mailed to this court by the district clerk. Although a properly prepared and tendered supplemental transcript containing copies of the trial court’s order and the injunction bond would be the better practice, we treat the district clerk’s affidavit sponsoring copies of the trial court’s order and injunction bond and the district clerk’s certificates appearing on those copies as sufficient for our purposes. Thus, we treat the trial court’s certified copy of order fixing the amount of the injunction bond and the certified copy of the injunction bond as timely filed in this court and now before us pursuant to our opinion of January 16, 1985. Accordingly, we grant the city’s motion for rehearing. Consequently, our judgment of February 7, 1985, reversing the trial court’s judgment and vacating the temporary injunction is set aside and the trial court’s judgment granting a temporary injunction is affirmed. All costs in the trial court and in this court are taxed against Williams.


author: BOYD, Justice.

text:
    T & R ASSOCIATES, INC. D/B/A Scarlett O’Hara’s, Appellant, v. CITY OF AMARILLO, Appellee.
    No. 07-83-0217-CV.
    Court of Appeals of Texas, Amarillo.
    Jan. 21, 1985.
    Rehearing Denied Feb. 11, 1985.

      Judge & Russ, John Judge, Amarillo, for appellant.
    Underwood Law Firm, C.A. Stein and Josiah M. Daniel, III, Merril E. Nunn, City Atty., Amarillo, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   BOYD, Justice.

Appellant T & R Associates, Inc. d/b/a Scarlett O’Hara’s (herein T & R) brings this appeal from a summary judgment that it take nothing on its counterclaim for money damages against appellee City of Amarillo (herein City). The action originated in the form of a counterclaim by T & R in a suit filed by the City seeking to enjoin the continued operation of a lounge known as Scarlett O’Hara’s. In the counterclaim, T & R sought damages to which it was as-sertedly entitled under both state law and 42 U.S.C. § 1988 (Supp.1984). T & R asserted the City, by seeking the injunction and by denying T & R’s application for a specific use permit to continue operation of the lounge within a general retail district, in addition to violating state law, denied T & R “its due process of law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States.” On November 6, 1981, the trial court entered an interlocutory summary judgment that T & R take nothing on its counterclaim. On June 1, 1983, an order was entered severing the counterclaim from the other matters raised in the litigation. Hence, this appeal. We affirm the action of the trial court.

The record reveals that T & R is a Texas corporation which operated the lounge in question at Space 15-A in the Sunset Center mall in Amarillo. The original tenant of the space sold both prepared food and beverages. However, between that time and the date of acquisition of the premises by T & R, some of the interim tenants had dropped the food service portion. During that period of time, each of the tenants did have a liquor license from the State of Texas, although the nature of such licenses is not shown. On November 16, 1978, officials of the City notified T & R that its operation without food service was in violation of the City’s zoning ordinance. Upon being so informed, T & R made application with the City for a specific use permit which would allow the continued operation of the lounge.' Although the Planning and Zoning Commission recommended approval of the permit, after a public hearing, the City Commission denied the application.

In its first three points, T & R contends the refusal by the City of its specific use permit denied it due process of law. In the first point, it contends this was effectuated by the consideration by members of the Amarillo City Commission of “secret evidence” received outside the City’s duly constituted hearing procedure. In its second and third points, T & R contends that this denial was accomplished by the failure of the City to follow what T & R denominates as guidelines set out in Amarillo, Tex., Code of Ordinances § 26-22.

In discussing these points, we initially note the litany of legal guidelines to be observed by this Court in the determination of summary judgment appeals. A summary judgment should be affirmed only if the summary judgment record establishes a right thereto as a matter of law, and the movant must establish that it is entitled to the judgment by reason of the matters set out in the motion. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Harrington v. Young Men’s Christian Ass’n of Houston, 452 S.W.2d 423, 424 (Tex.1970); Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). The burden of demonstrating the lack of a genuine issue of material fact is upon the movant and all doubts are resolved against him. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 235 (1957); Durham v. Cannan Communications, Inc., 645 S.W.2d 845, 852 (Tex.App. — Amarillo 1983, writ dism’d); Lindley v. Smith, 524 S.W.2d 520, 523 (Tex.Civ.App. — Corpus Christi 1975, no writ).

Furthermore, we note that it is well established that regulation of the sale of alcoholic beverages through zoning ordinances is a proper exercise of a city's police powers. Eckert v. Jacobs, 142 S.W.2d 374, 376-77 (Tex.Civ.App. — Austin 1940, no writ). See also Deckard v. City of Port Lavaca, 491 S.W.2d 748, 751 (Tex.Civ.App. —Corpus Christi 1973, no writ). The rationale for this has been expressed as that the sale of intoxicants is accompanied with objections not present in other types of commercial'enterprises, and that fact constitutes valid grounds for a separate classification or prohibition thereof in a given commercial area, for the protection of the health, morals, safety, peace and convenience of the public. Eckert v. Jacobs, 142 S.W.2d at 377.

The adoption and amendment of zoning ordinances is an exercise of the legislative power of the City. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 480 (1955); Sherwood Lanes, Inc. v. City of San Angelo, 511 S.W.2d 597, 599 (Tex.Civ.App. — Austin 1974, writ ref'd n.r.e.). The issuance of a specific use permit such as here sought would constitute an amendment of the zoning ordinance. See City of Lubbock v. Whitacre, 414 S.W.2d 497, 499 (Tex.Civ.App. — Amarillo 1967, writ ref’d n.r.e.). A city ordinance is presumed to be valid and this presumption applies to amendatory zoning ordinances as well as original comprehensive zoning ordinances. Hunt v. City of San Antonio, 462 S.W.2d 536, 539 (Tex.1971).

Therefore, a city council, acting in its legislative capacity may determine in the first instance whether or not facts exist warranting a classification and its determination of that issue cannot be disturbed in the absence of a clear showing that there is no reasonable basis therefor. It will be presumed, in the absence of a clear showing to the contrary, that in making that decision, the governing body had sufficient reason, in view of local conditions, to make the decision they have made. City of Dallas v. Lively, 161 S.W.2d 895, 898 (Tex.Civ. App. — Dallas 1942, writ ref’d). The burden of proof falls upon the party complaining of the decision to show that the decision amounted to a clear abuse of municipal discretion. Hunt v. City of San Antonio, 462 S.W.2d at 539. That burden has been described as “extra-ordinary” and requires a showing that no conclusive or even controversial or issuable facts exist which would justify the decision of the municipality. Thompson v. City of Palestine, 510 S.W.2d 579, 581 (Tex.1974); City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43, 45 (1958); City of Waxahachie v. Watkins, 275 S.W.2d at 480. The decision as to whether the action of the municipality was an abuse of its discretion is a question of law for the court, and in deciding that question, the court must have due regard to all the circumstances of the city, the object sought to be attained and the necessity existing for the ordinance. City of Bellaire v. Lamkin, 317 S.W.2d at 45; Edge v. City of Bellaire, 200 S.W.2d 224, 227 (Tex.Civ.App. — Galveston 1947, writ ref’d).

In support of its argument that “secret” evidence was received and considered by the City Commission in making its decision, T & R cites statements made in depositions by Mayor Jerry H. Hodge and Commissioner J. Dean Christy. In Hodge’s case, that reference was to the fact that a previous owner of the property had told him that he had informed the owners of T & R that “they had a restaurant permit” and “if they removed that kitchen they would be in trouble.” When queried as to whether that conversation was “a part of your decision making process,” Hodge replied, “It certainly was, that and the fact that they had been in violation, and it’s our responsibility as ... the ultimate responsibility of the City Commission to approve zoning, regardless whether it’s in agreement with the Planning and Zoning Commission nor [sic] the city staff, and we have that responsibility and obligation.”

In Christy’s instance, the challenged statement was made in the course of a rambling answer concerning a comment Christy had made at the conclusion of the public hearing on the specific use permit. In that comment, he made reference to the fact that some innuendos and remarks had been made about the applicants that he did not appreciate. In his answer Christy said he was referring to the fact that name calling and innuendos weren’t pertinent to the subject and “the crux of the. matter, as I saw it, was strictly this, and the reason IJ voted as I did, there was an establishment in operation in violation of city codes. That was a foregoing fact, that was clear cut.” He then stated he thought “people” should have had “a right at the time that the zoning was changing to permit this establishment to either protest or not protest” and that they “had been denied that right.” The remainder of the answer, and the challenged portion was as follows:

The one other thing that bothered me along these lines, is the fact that some $35,000 worth of improvements were done without a permit. I was told, and now this is heresay [sic], that the reason no permit was gotten was that they knew that they could not get a permit for this type of remodeling due to the fact that a permit would not have been granted therefore, they went ahead with some $35,000 worth of remodeling without a city permit, in violation of another city ordinance. This is what I was told.

We do not believe these references require reversal. While a public hearing is required by Tex.Rev.Civ.Stat. Ann. art. lOlld (Vernon 1963), that hearing is legislative rather than judicial in nature. Lawton v. City of Austin, 404 S.W.2d 648, 651 (Tex.Civ.App. — Austin 1966, writ ref’d n.r.e.). It is not required that the decision of the City Commission be made solely on the basis of evidence produced at the hearing. After all of those who wish to be heard have been heard, the City Commission, like any other legislative body, had the right to act on its own knowledge of the community and its own appraisal of the public welfare. Charlestown Homeowners Ass’n, Inc. v. LaCoke, 507 S.W.2d 876, 879 (Tex.Civ.App. — -Dallas 1974, writ refd n.r. e.). The depositions in question show that this is exactly what Hodge and Christy did. Point of error one is overruled.

In points two and three, T & R asserts error on the part of the City in failing to follow guidelines which, it argues, are set out in the Amarillo, Tex., Code of Ordinances § 26-22 and thereby violated its constitutional right to due process of law. In pertinent part section 26-22 reads as follows:

Sec. 26-22. Specific use permits.
The city commission of the City of Amarillo, Texas, after public hearing and proper notice ... may authorize the issuance of specific use permits for the uses indicated by “S” in the use schedule section 26-8.
* ⅜ * * * *
(C) The city commission may, in the interest of public welfare and to assure compliance with the purposes of this ordinance, establish additional conditions of operation, location, arrangement and construction for any use for which a permit is authorized. In authorizing the location of any of the uses listed in section 26-8 as specific use permits, the city commission may impose additional development standards and safeguards as the conditions and locations indicate important to the welfare and protection of adjacent property from excessive noise, vibration, dust, dirt, smoke, fumes, gas, odor, explosion, glare, offensive view or other undesirable or hazardous conditions. In considering a specific use permit for any use in [a] “GR” ... zoning district, special consideration shall be given to possible undesirable characteristics of the use such as outside activities, storage of vehicles, equipment or materials, location and visual effects of loading areas and building type and appearance inconsistent with the zoning district.

Examination of the ordinance readily reveals that the granting of a specific use permit by the City Commission is discretionary. In the event it desires to grant such a permit, the ordinance allows the City to establish any additional conditions, beyond those normally required by the zoning ordinance, for the operation, location, and construction of any use to be authorized by the permit. It is in this context, i.e., the power to impose “additional development standards and safeguards” that the list of conditions which T & R characterizes as “guidelines” occur. The ordinance clearly does not specify guidelines under which a hearing on the application must be held nor does it specify any conditions or guidelines precedent to the denial of any such application. Therefore, we find nothing in the ordinance which would additionally restrict the City Commission in exercising its legislative discretion of either granting or denying an application for specific use permit. Points of error two and three are overruled.

In summary, we have considered all the elements required to be considered by us and we find no evidence of such arbitrary or capricious conduct on the part of the City Commission as to constitute clear abuse of municipal discretion. It necessarily follows that we find that no violation of T & R’s constitutional right to procedural due process occurred in the conduct of the hearing resulting in the denial of the permit sought. Points one, two and three are overruled.

Logical continuity next requires a discussion of points five and seven. In point five, T & R contends that the entry of the take-nothing judgment was error because the City was estopped to deny T & R’s application for specific use permit. In point seven, T & R asserts the City ratified the lounge operation “by virtue of its prior certifications to the Texas Alcoholic Beverage Commission that the lounge operation was in compliance with the zoning ordinance.” T & R groups and argues these points together and we will consider them together. The thrust of T & R’s argument under these points is that the action of city inspectors in the issuance of certificates of occupancy during the period from September 6, 1973 to January 13,1978, some or all of which were issued during a time when food service activities were not being conducted on the premises, either estops the City from now denying the legality of the lounge operation or, in the alternative, that such actions amounted to a ratification of the unauthorized use sufficient to legalize it.

T & R’s version of the circumstances surrounding the issuance of these certificates is set out in a certified copy of a stipulation of evidence between the parties attached to the City’s motion for summary judgment. That stipulation was filed with this Court in the previous appeal of a temporary injunction granted in this case. See T & R Associates, Inc. v. City of Amarillo, 601 S.W.2d 178 (Tex.Civ.App. — Amarillo 1980, no writ). In that instrument, referred to by both parties in their briefs, T & R sets out its understanding of the facts as testified by Earl Miskimen, Director of Code Enforcement for the City and Dale Williamson, who was Director of Planning and Traffic for the City. Since it is most favorable to T & R’s position in this appeal, we will accept it for the purpose of our discussion. It is as follows:

A) That in the ordinary course of business, in connection with each application for a Mixed Beverage Permit at Space 15-A, Sunset Center, there should have been and probably was an actual physical inspection at the premises by a duly authorized officer of THE CITY OF AMARILLO, Code Enforcement Department, and that neither witness could state as a fact that such inspection did not occur prior to the issuance of each document shown in Defendant’s Exhibits 1-6;
B) That each such inspection, if any, resulted in the issuance of the documents shown as Defendant’s Exhibits 1-6.

The defendant’s exhibits referred to were the certificates in question. Defendant’s exhibit 1 is dated January 13, 1978, exhibit 2 is dated June 6, 1977, and exhibit 4 is dated September 27, 1976. Each of these exhibits is a “Certificate of Code Compliance” and contains the following certification:

I hereby certify that the use described herein is designated by the Schedule of Uses, Section 26-8 of the Zoning Ordinance, as a permitted use in the Zoning District applicable to said location and that the building complies (or building plans comply) with the adequate building provisions of the Texas Liquor Control Act and the building and zoning codes of the City of Amarillo. This location is in a wet area.

Exhibit 3 is a “Tax and/or Code Enforcement Department Report Form” dated May 18, 1977. It refers to a “Late Hour and Mixed Beverage” license and is initialed “ok.” Exhibit 5 is a “Certificate of Occupancy and Compliance” dated September 19,1975. Both exhibit 5 and exhibit 6 state that the building or structure as defined therein “complies with the regulations of the Building Code, Health Ordinances, Zoning Ordinances and Other Ordinances of the City of Amarillo.” It is the issuance of these certificates, presumably after an inspection of the premises by a duly authorized officer of the City, upon which T & R relies in its argument under these points.

The City, citing Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540, 543 (Tex.1971) and City of Houston v, Clear Creek Basin, 589 S.W.2d at 678 contends that T & R may not rely upon the issue presented by point five (estoppel) since it was not sufficiently presented to the trial court at the time of the summary judgment hearing. However, a review of T & R’s response to the City’s motion for summary judgment convinces us that the allegations in paragraphs IV, V, VI and VII were sufficient to preserve the question for decision.

The well-established general rule in Texas is that, as a matter of law, a city may not be estopped to enforce zoning ordinances unless the zoning violator has detrimentally relied upon an authorized act of the municipality. City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970); City of Amarillo v. Stapf, 129 Tex. 81,101 S.W.2d 229, 232 (1937); City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308, 311-12 (1936); Davis v. City of Abilene, 250 S.W.2d 685, 688 (Tex.Civ.App.— Eastland 1952, writ ref’d); Robinson v. City of Dallas, 193 S.W.2d 821, 823 (Tex. Civ.App. — Austin 1946, writ ref'd). The exception to the general rule of non-estoppel on the part of the City, i.e., detrimental reliance upon an authorized act of the municipality, is a narrow one. It has been stated that it should be applied only in exceptional cases and with caution. City of Dallas v. Rosenthal, 239 S.W.2d 636, 645-46 (Tex.Civ.App. — Dallas 1951, writ ref'd n.r.e.). Indeed, the Rosenthal case, and its predecessor case involving the same parties and the same fact situation, Rosenthal v. City of Dallas, 211 S.W.2d 279 (Tex.Civ.App. — Dallas 1948, writ ref’d n.r. e.), are the only instances in this State which we have found in which a court has found circumstances warranting the application of estoppel to a municipality in a zoning ordinance enforcement case.

In Rosenthal, the dispute arose out of Rosenthal’s project of converting an old ice factory, located in an apartment district, into a cold storage plant. He submitted his plans to an assistant building inspector and an assistant city attorney. The assistant city attorney instructed the building inspector to determine whether a nonconforming use existed prior to the time of the enactment of the City’s ordinance. If the ice factory was a valid nonconforming use, a cold storage use would also be possible under the ordinance. The inspector made a specific finding that the nonconforming use existed prior to the enactment of the ordinance. Based upon that finding, a permit was issued to Rosenthal for the operation of a cold storage plant including meat curing. A furor arose among the citizenry and the City of Dallas sought to revoke the permit.

In holding that the City was estopped to revoke the permit, the Dallas court stated that the action of the inspector had become “in a sense, res judicata.” Because the City was estopped to deny the findings of the inspector of a prior nonconforming use, the court held the rights of the owners of such property to operate that business or a similar business had become vested. Rosenthal v. City of Dallas, 211 S.W.2d at 293. No such facts exist in the case sub judice.

The use of the premises by T & R without food service was admitted to be a clear violation of the zoning ordinance. Even assuming, arguendo, that the certificates were issued reflecting a lounge use, the inspectors had no authority to legalize such an unauthorized use. No fact finding by the inspectors of an authorized use of the premises is here involved. T & R was charged with notice of the provisions of the zoning ordinance and was not entitled to rely upon any action of the building inspectors which was in direct violation of such ordinance. If, in fact, it did rely upon any actions of the inspectors, T & R did so at its own peril and the City did not become bound or estopped thereby. Davis v. City of Abilene, 250 S.W.2d at 688; City of Amarillo v. Stapf 101 S.W.2d at 232.

Ratification is the adoption or confirmation by a person, with knowledge of all material facts, of a prior act which did not legally bind him and which he had the right to repudiate, but which, by the ratification, is given retroactive effect as if originally performed by him. Kunkel v. Kunkel, 515 S.W.2d 941, 948 (Tex.Civ.App. —Amarillo 1974, writ ref’d n.r.e.). Even assuming, arguendo that this doctrine, under proper facts, could be applied against the City, there are no facts in this record which would justify its application. The fact that a city official or employee fails in certain particulars to enforce a zoning regulation cannot render it invalid. City of Corpus Christi v. Jones, 144 S.W.2d 388, 392 (Tex.Civ.App. — San Antonio 1940, writ dism’d judgmt cor.). The application of the doctrine in this case would require T & R to admit that the purported acts of the inspectors not only did not bind the City but that it had a right to repudiate any such acts. T & R clearly has not done so and its argument as to ratification falls by its own weight. Moreover, there is nothing in this record which would raise a fact issue as to whether the members of the City Commission knew of the acts of the inspectors as to any attempted authorization of zoning violations, and so knowing, expressly ratified them. Points of error five and seven are overruled.

In point six, T & R argues that the summary judgment proofs show the existence of a material fact question as to whether the zoning ordinance bears any rational relation to the protection of the public health, safety, morals, general welfare or any other legitimate governmental function insofar as it pertains to the lounge operation in question. T & R’s argument under this point is that the City’s “long, continued failure to enforce a zoning ordinance” has resulted in the “development of a defacto [sic] specific use permit” which renders the City’s “belated attempt at enforcement” useless in promoting the public health, etc. of the City. Our discussion under points five and seven, we believe, adequately covers this contention. For the reasons stated above, we do not believe the City itself is prevented from enforcing its ordinance. Moreover, even if this point were construed as representing an attack upon the validity of the ordinance itself, it comes too late. In all of its pleadings and in its response, T & R attacks the manner of enforcement of the ordinance, not the validity of the ordinance itself. Since that issue was not raised in the trial court by pleadings and written response to the motion for summary judgment, T & R may not raise that issue on appeal. Houston v. Clear Creek Basin Authority, 589 S.W.2d at 678; Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d at 543; Tex. R.Civ.P. 166-A(c). Point of error six is overruled.

The disposition which we have made of T & R’s other points of error mandates the overruling of its fourth point. In that point, it asserts that the summary judgment proofs failed to establish as a matter of law that it should take nothing on its claim under 42 U.S.C. § 1983. A municipality is liable under § 1983 for a deprivation of rights protected by the Constitution or federal laws that is inflicted pursuant to official policy. Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). The record sufficiently establishes that T & R has not been deprived of any such rights.

In summary, all of T & R’s points of error are overruled and the judgment of the trial court affirmed.