author: ALLEN, Justice.

text:
    Walter W. GREVE and Lois I. Greve, Appellants, v. Oscar COX, Jr., Appellee.
    No. 05-84-00015-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 5, 1984.

      Mark E. Bentley, Dallas, for appellants.
    John 0. MacAyeal, Mesquite, for appel-lee.
    Before AKIN, VANCE and ALLEN, JJ.
   ALLEN, Justice.

Walter W. and Lois I. Greve, husband and wife, appeal from a judgment awarding earnest money held by Hexter Fair Title Company to interpleader defendant, Oscar Cox, Jr.

Appellants contend that the court erred: (1) in finding a binding contract between Walter W. Greve and Oscar Cox, Jr. in absence of Lois Greve’s signature on the contract; and (2) in not declaring the contract terminated because a V.A. loan was not obtained by Walter W. Greve. We reject appellants’ contentions and, accordingly, affirm the trial court’s judgment.

On March 12, 1982, Walter Greve and Oscar Cox, Jr. affixed their signatures to a real estate contract which showed Walter W. Greve and wife Lois I. Greve as “buyer.” Walter Greve deposited the earnest money with Hexter Fair Title Company as required and applied for a V.A. loan. After viewing the property a second time, Lois Greve declared that she would not sign the purchase contract. Walter Greve notified Hexter Fair that Lois would not sign the contract, contended that no binding contract ever came into being, and demanded return of earnest money. Hexter Fair refused to return the money to Greve, thus Greves’ suit against Hexter Fair. Hexter Fair answered and interpled all parties and deposited the earnest money in the court’s registry. Cox answered by general denial only. The main question before the trial court was whether the Greves or Cox is entitled to the earnest money interpled by Hexter Fair. Trial was to the court which rendered judgment for Cox and the Greves appeal.

We look to the contract introduced in evidence by appellants and note that a completed agreement is shown on the four corners thereof along with the signatures of Walter Greve, as buyer, and Oscar Cox, Jr., as seller. Greve admits depositing the earnest money in compliance with the contract terms.

A contract for the sale of real estate is an agreement which binds the purchaser to buy and the seller to sell in accordance with the terms of the contract. Lefevere v. Sears, 629 S.W.2d 768, 770 (Tex.Civ.App.—El Paso 1981, no writ). The mutual promises — one by the seller to sell and one by the buyer to buy and pay for the land — are sufficient consideration. Cowman v. Allen Monuments, Incorporated, 500 S.W.2d 223, 227 (Tex.Civ.App.—Texarkana 1973, writ dism’d). Therefore, we overrule Greves’ first ground of error and hold that Greve and Cox entered into a binding contract for the sale of real estate. The absence of Lois Greve’s signature did not affect the rights, duties, and liabilities of Greve and Cox under contract.

In their second point of error, the Greves maintain the contract terminated on the date of closing because they never obtained a V.A. loan as required under the contract. Since there are no findings of fact or conclusions of law, we must presume that the trial court made findings necessary to support its order, if there is sufficient evidence to support such findings. Pool Co. v. Hydra-Rig, Inc., 626 S.W.2d 320, 322 (Tex.App.—Fort Worth 1971, no writ).

In reviewing the evidence, we must indulge every reasonable intendment in favor of the decision of the trial court. American Empire Life Insurance Company v. Hakim, 312 S.W.2d 739 (Tex.Civ.App.—El Paso 1958, no writ). Also, if there is evidence to support a presumed finding of the trial court, we must accept the evidence as true and sustain the trial court’s finding. Wallace v. Income Properties/Equity Trust, Etc., 538 S.W.2d 17 (Tex.Civ.App.—Austin 1976, writ dism’d).

At trial, Mr. Greve stated that he had no way of knowing if his V.A. loan had been approved. Cox testified, however, that the Greve loan had been approved. Thus, we may presume, based on the trial testimony of Cox, that the court concluded Greves’ Y.A. financing was approved. Accordingly, the Greves’ second point of error is also overruled.

By the terms of the agreement, the parties plainly expressed the intention that upon default of the purchaser, the seller would have the right to either retain the cash deposit as liquidated damages or sue for specific performance. These provisions are enforceable. Brewer v. Myers, 545 S.W.2d 235 (Tex.Civ.App.—Tyler 1976, no writ ref’d n.r.e.). We affirm, therefore, the judgment of the trial court awarding Cox the earnest money as liquidated damages.


source: Caselaw Access Project

author: STOREY, Justice.

license: Public Domain

text:
    Gregory Oneil PRUITT, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00878-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 7, 1984.

      Jerry R. Birdwell, Tim Tyner, Dallas, for appellant.
    Henry Wade, Dist. Atty., Celia V. Barr, Asst. Dist. Atty., Dallas, for appellee.
    Before STOREY, VANCE and ALLEN, JJ.
   STOREY, Justice.

Gregory Oneil Pruitt appeals from a conviction of aggravated robbery complaining that the trial court committed reversible error in (1) admitting testimony of appellant’s statements to police, (2) admitting evidence obtained pursuant to statements appellant made to the police, (3) failing to make a voluntariness finding on appellant’s statements to the police, and (4) admitting testimony of a police lineup identification. The significant issue before the court is whether the error in admitting testimony of appellant’s statements to the police taken in violation of the appellant’s Miranda rights was rendered harmless by reason of the overwhelming weight of the evidence against appellant. We hold that on the facts of this case the error was harmless and that the remainder of appellant’s points present no error. Accordingly, we affirm.

Evelyn Allison, the manager of the Cleanarama Cléaners, was the victim of the robbery. She described the robber to the police as a black man with medium type skin, about six feet tall and one hundred seventy to eighty pounds. The man was clean-shaven, wore a clear shower cap over his hair and had distinctive eyes. Allison also described the gun he was carrying— dark blue with a very short-nosed barrel. Allison testified that she observed the appellant at close range for about five to six minutes and she positively identified appellant in court based on her observation at the time of the robbery. Cross-examination revealed only that Allison hesitated at a live lineup before deciding that a man who looked similar to the appellant was not the appellant, and that at a six-picture lineup she eliminated four men but hesitated before eliminating the fifth and identifying the sixth as appellant.

Shelby Harbour testified that he was the police investigator who showed Allison the picture lineup and arrested appellant later on the day of the robbery. Officer Harb-our and his partner stopped appellant as he was driving down Lemmon Avenue. A clear shower cap was found in appellant’s car.

Next, John Westphalen testified that he was the officer who took the complainant’s story and interviewed appellant the next day. His testimony before the jury regarding his conversation with appellant was as follows:

Q. Without going into the contents of the conversation, did he say anything to you about where he had been living?
A. Yes, he did.
Q. And what did he say about that?
A. He said he had been staying part-time at an apartment house on Simpson.
Q. Did he give you an address on Simpson?
A. No, he gave us directions and gave us the apartment number.

Then the officer testified that he and other officers went to that apartment where Alisha Adams answered and consented to a search of the premises. Two guns and a brown leather coat were found as a result of the search. One of the guns was put in evidence and the complainant testified to its similarity to the gun held on her.

Next, M.P. Southall testified about the search of the apartment and that as a result of a conversation with Alisha Adams he learned that appellant stayed there part-time. No evidence was introduced for the defense.

A hearing on the voluntariness of appellant’s statements to the police was held out of the jury’s presence in connection with another case and was incorporated verbatim into the record of this case. At this hearing John Westphalen testified that he and another officer interviewed the appellant on the day following the robbery. After appellant was given his Miranda rights and indicated that he understood them, Westphalen testified on direct examination by the State that:

Q. Did he indicate that he wanted to invoke them at that time?
A. He just said that he understood them at that time.
Q. And then what happened?
A. We started talking to him about the robberies that he had been charged with and we were attempting to find out who the second man was with him on his robberies.
Q. And what did he say to you?
A. For a few minutes he said he didn’t want to talk. He talked all he was going to talk and we talked probably for about five or six minutes and then he finally said that he would give us the name of the second man.

Also at this hearing the following dialogue later ensued between the trial judge and Westphalen:

THE COURT: You say that Mr. Lewis gave him all of the Miranda warnings. Is that right?
THE WITNESS: That’s right.
THE COURT: All right. Now, at some time I may have heard you wrong. Did you say that the Defendant had said he didn’t want to talk anymore about this offense, that he had done all the talking that he wanted to do?
THE WITNESS: That’s right.
THE COURT: All right. What did you do then? Did you talk to him about the offense anymore at that point?
THE WITNESS: We kept talking to him about the second man involved in the robbery and he finally said, I know I’m going back to prison. I will go ahead and tell you.

Later in the voluntariness hearing, the following exchange was had on cross-examination and the Court interjected:

Q. Okay. But he said he didn’t want to talk. I am just — I am just trying to understand you, Officer, as to what your interpretation is of the Miranda warnings—
THE COURT: Excuse me, counsel, isn’t his interpretation more or less irrelevant in light of what the Court’s interpretations have been? ...
If that is a violation of the Defendant’s rights as far as terminating the interview, it more or less stands or falls on its own merits, regardless of what this officer’s interpretation is, it would seem to me. (emphasis added)

At the conclusion of the hearing the court found that the defendant had been apprised of his constitutional rights and that he had knowingly and intelligently waived those rights. The trial judge further found that “the requirements of the Texas laws related to oral confessions have been complied with” and held the conversation between the defendant and Westphalen admissible.

Appellant first argues that:

the court committed error in admitting over appellant’s objection, testimony that the appellant, Gregory Oneil Pruitt, gave ... an address at which [he] had been staying after the appellant previously stated that he had “talked all he was going to talk” in that same denied appellant his protection against self-incrimination under the 5th Amendment of the United States Constitution and Art. 1, section 9, of the Texas Constitution, and appellant his right to “due process of law” guaranteed by the 14th Amendment of the United States Constitution and Art. I, section 19, of the Texas Constitution.

The State responds that error was not properly preserved for appeal: “[I]n order to complain about the admissibility of a confession, even in regard to a violation of Miranda, ... there must be an objection in the trial court. Furthermore, the objection, if any, must have called the attention of the trial court to the particular complaint raised on appeal.” Ex parte Bagley, 509 S.W.2d 332, 338 (Tex.Crim.App.1974). However, the law is clear that “when the court hears objections to offered evidence out of the presence of the jury and rules that such evidence shall be admitted, then in that event such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of such objections being renewed in the presence of the jury.” TEX.CODE CRIM.PROC.ANN. art. 40.09 § 6(d)(3) (Vernon Supp.1984); Harryman v. State, 522 S.W.2d 512, 516 (Tex.Crim.App.1975).

The record here does not reveal that the appellant, in the voluntariness hearing, made the usual formal objection to the complained-of statements before the trial judge made his ruling on admissibility. However, the record does show that the pre-eminent focus of the hearing was that the police officers continued questioning the appellant after the appellant stated he did not want to talk further. The appellant’s line of cross-examination firmly established that the appellant’s Miranda rights and his right to terminate the interview at any time had been violated. The inteq'ections of the court itself show that appellant called this issue to the attention of the trial court. Furthermore, from the court’s ruling to the effect that appellant had waived his Miranda rights, it is apparent that the court considered the objection on that ground to be adequately presented.

Additionally, although the State cites White v. State, 591 S.W.2d 851 (Tex.Crim. App.1980), for the proposition that an objection on point not raised at trial will not preserve error for appeal, we observe that the court in that case went to lengths to address the appellant’s contention that his right to silence was not scrupulously honored. The court expressly considered that point as unassigned error “in the interest of justice” under TEX.CODE CRIM.PROC. ANN. art. 40.09 § 13 (Vernon 1979) (amended 1981). White v. State, 591 S.W.2d at 861. Thus, we hold that the error was sufficiently preserved and proceed to the merits of appellant’s contention.

“[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Mi randa on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). Whatever “scrupulously honored” does not mean, at the very least it means that “if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966).

As the State urges, Miranda cannot “sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.” Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975) (emphasis added). However, in this case, as in Heame v. State, “[w]e are not here confronted with the question of at what point in time and under what circumstance questioning may resume after the right to remain silent has been invoked since the testimony of the officer reflects that there was never any cessation of the interrogation.” Hearne v. State, 534 S.W.2d 703, 706 (Tex.Crim.App.1976). As Westphalen admitted, interrogation never ceased upon appellant’s invocation of his right to remain silent. Thus, this right was not scrupulously honored and admission of any statements made during that session was error. See Hearne v. State, 534 S.W.2d at 703.

Nevertheless, where evidence of guilt is overwhelming and the prejudicial effect of improperly admitted evidence is insignificant by comparison, the admission of that evidence is harmless error. Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1058, 31 L.Ed.2d 340 (1972). This is true even where the error is on a constitutional ground. Schneble, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340; Chambers v. Maroney, 399 U.S. 42, 53, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970). “Before an error of constitutional dimension can be held to be harmless error, however, the reviewing court must be able to declare that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Cole v. State, 484 S.W.2d 779, 783 (Tex.Crim.App.1972).

In appellant’s case we have the clear and positive identification of the appellant by the complainant. The complainant’s observations of the appellant occurred not only after he had drawn his gun and placed her in great fear, but also before the robbery occurred, during the time when the appellant approached the cleaners and was apparently only another customer. The complainant testified that it is her practice to study and learn her customers’ faces so that she can address them by name, which encourages repeat business. She identified the appellant from a picture in a lineup the evening of the robbery. In addition to this, a clear plastic shower cap was found in appellant’s car upon his arrest the day of the robbery. Officer Southall testified that appellant was known to have stayed at the same apartment where a gun of characteristics similar to the gun complainant faced was found.

The appellant presented no evidence in his own behalf. Furthermore, cross-examination did not significantly affect the weight of the State’s evidence. The only evidence admitted as a result of the police interrogation was the fact that the appellant gave the police a location where he had been staying. The location was corroborated by the properly admitted testimony of officer Southall. When improperly admitted evidence is properly in the record from another source, the improper admission results in harmless error. Brasfield v. State, 600 S.W.2d 288, 296 (Tex.Crim.App.1980). Thus the only improperly admitted evidence that was not corroborated by competent evidence was that it was appellant himself who gave the police the information. In reviewing the evidence we conclude that any prejudicial effect of the erroneously admitted evidence is overwhelmingly outweighed by the evidence of guilt, and therefore that the error was harmless beyond a reasonable doubt.

Appellant also complains of the trial court’s failure to make a finding on volun-tariness of the statements made to the police. Indeed the trial court did not make express written findings on voluntariness as required by TEX.CODE CRIM.PROC. ANN. art. 38.22, § 6 (Vernon 1979). Because we hold that admission of the statements was a violation of Miranda but was harmless error in light of the overwhelming weight of the evidence, the error this point presents is also rendered harmless.

Next appellant complains the trial court erred “in admitting into evidence, over appellant’s objections, State’s exhibits nos. 2 and 3” because that evidence was obtained pursuant to information obtained in violation of appellant’s right to remain silent. State’s exhibit 2 is marked in the record as “consisting of a large diagram” and was identified by the complainant as her drawing of the inside of the Cleanara-ma Cleaners as it appeared on February 23, 1983. Obviously this evidence was not obtained pursuant to information from the appellant; the diagram was properly admitted. State’s exhibit 3 is a handgun that was found in the search of the apartment on Simpson street, later identified by the complainant. No objection was made regarding the admissibility of the gun at the pre-trial hearing. The only objection at trial to this evidence was on the grounds that the gun was not linked to the robbery because the complainant only testified that it looked like the gun and did not testify that it was the same gun. Appellant cannot preserve error on a different ground on appeal than was made at trial. Euziere v. State, 648 S.W.2d 700, 703 (Tex.Crim.App. 1983).

Lastly, appellant complains the court erred in admitting testimony of a police lineup identification “because it was not shown that appellant waived his right to counsel, the line-up having been conducted without the presence of defendant's counsel” and that this was a violation of appellant’s 6th Amendment right to counsel and 14th Amendment right to due process. We conclude, however, that no error is presented because the record does not show that appellant was formally charged with the commission of this offense before the line-up was held. Thus, appellant has not shown he was entitled to counsel at the complained of line-up. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Beaupre v. State, 526 S.W.2d 811, 814 (Tex.Crim.App.), cert. denied, 423 U.S. 1037, 96 S.Ct. 573, 46 L.Ed.2d 412 (1975).

Affirmed.


author: GUITTARD, Chief Justice.

text:
    Gary Don BOYD, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00570-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 11, 1984.

      Gary Don Boyd, pro se.
    F. Duncan Thomas, Dist. Atty., Green-ville, for appellee.
    Before GUITTARD, C.J., and STEPHENS and STEWART, JJ.
   GUITTARD, Chief Justice.

Appellant was convicted by a jury of escape. His punishment, enhanced by two prior felony convictions, was assessed by the trial judge at life in the Texas Department of Corrections. On appeal, appellant, proceeding pro se, complains of the trial court’s denial of his motion to dismiss counsel and to proceed pro se. We hold that the motion was improperly denied. Therefore, we reverse the judgment of the trial court and remand the case for a new trial without addressing appellant’s other grounds of error.

According to Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975), the Sixth Amendment gives a person accused of crime the right to represent himself. As Faretta says, “Forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.” Faretta, 422 U.S. at 817, 95 S.Ct. at 2532. The ultimate choice to represent himself or to proceed with counsel is the defendant’s. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App.1984) (en banc).

In this case appellant moved at the pretrial stage to be allowed to participate in defending the case along with the appointed attorney. That motion was overruled. Appellant then moved to dismiss the appointed attorney and be allowed to proceed as his own counsel. In response to inquiries by the judge, appellant said that he had completed one year of college, but admitted that he had no experience in law, knew nothing of the rules of evidence and procedure, and knew very little about the law generally. Without making any further inquiry or giving any explanations or warnings concerning the danger of self-representation, the court overruled his motion and proceeded with the lawyer previously appointed.

Appellant’s request for self-representation was timely, since it was made before the jury was empaneled. Blankenship, 673 S.W.2d at 585. We hold, in the light of Blankenship and Faretta, that denial of his constitutional right of self-representation was reversible error.

In view of another trial, we point out that the judge’s explanations and warnings were probably not sufficient to show a knowing and intelligent waiver of counsel, which the record must show when a defendant is permitted to represent himself. Martin v. State, 630 S.W.2d 952, 954 (Tex.Crim.App.1982) (en banc). The trial judge had the duty to give appellant the necessary explanations and warnings before ruling on his request for self-representation. The judge’s failure to do so, however, cannot prejudice appellant’s constitutional right to represent himself. On another trial, therefore, before permitting appellant to proceed pro se, the court is instructed to make such inquiry into appellant’s capacity to represent himself and give him such explanations and warnings of the dangers of self-representation as may be necessary to make sure that appellant has made a knowing and intelligent waiver of his right to the assistance of counsel.

Reversed and remanded.


author: GAMMAGE, Justice.

text:
    Mrs. Riley Butler DUNLAP, et al., Appellants, v. Olga W. WILLIAMSON, Individually and As Independent Executrix of the Estate of Fred Williamson, Deceased, Appellee.
    No. 14151.
    Court of Appeals of Texas, Austin.
    Dec. 19, 1984.
    Rehearing Denied Jan. 16, 1985.
    James 0. Cure, Temple, for Riley Butler Dunlap.
    Don Busby, Busby & Wilson, Temple, for Raymond Wilkinson.
    Jerry Scarbrough, Killeen, for Peggy Wilkinson.
    Jack W. Prescott, Temple, for appellee.
    Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
   GAMMAGE, Justice.

Riley Butler Dunlap and Raymond and Peggy Wilkinson appeal from the judgment of the trial court holding them liable on a certain promissory note. We will reverse the judgment.

In 1971 Raymond Wilkinson and Roy Dunlap purchased all of the capital stock of Fred Williamson and Company from Fred Williamson. As partial payment for this stock, Raymond Wilkinson and Roy Dunlap executed and delivered to Williamson a promissory note. Neither Peggy Wilkinson nor Riley Butler Dunlap, the wives of the makers of the note, joined in the execution of the note. This note provided, upon default, for acceleration of maturity at the election of the holder. The note contains no waiver of notice and presentment.

The makers of the note defaulted in 1981 and, after giving notice of acceleration and demand for payment, Williamson filed this lawsuit. The Dunlaps were divorced prior to the institution of suit, and the Wilkin-sons were divorced shortly after suit was filed. Roy Dunlap sought and received discharge from his debts in bankruptcy later that same year. Fred Williamson subsequently died and his estate went into probate. His widow, Olga Williamson, as executrix of his estate, continued prosecution of the suit.

Mrs. Williamson seeks recovery on the note from Raymond Wilkinson. She also seeks to hold the two wives liable on the note, on the theory that the note was a “community debt.”

Raymond Wilkinson and Riley Butler Dunlap were named as defendants in the original petition. Mrs. Williamson later amended and brought in Peggy Wilkinson as a defendant.

The trial court entered judgment against Raymond Wilkinson. Despite a jury finding that Williamson agreed to look solely to Raymond Wilkinson and Roy Dunlap for satisfaction of the debt, the trial court also entered judgment non obstante veredicto against the wives. It is from this judgment that all defendants appeal.

PEGGY WILKINSON AND RILEY BUTLER DUNLAP

Mrs. Williamson asserts, and the trial court held, that these two defendants are liable on the note as a matter of law because the note was executed during the respective parties’ marriages. We disagree. While there is a presumption that a debt incurred during the marriage is a community debt, this presumption may be re-buted by a showing that the creditor agreed to look for satisfaction only to the separate estate of the spouse incurring the debt. Cockerham v. Cockerham, 527 S.W.2d 162 (Tex.1975); Broussard v. Tian, 295 S.W.2d 405 (Tex.1956). The joint liability found in Cockerham resulted because Mr. Cockerham’s “actions were consistent with an implied assent to [the debts’] establishment,” not solely because they were incurred during the marriage, as Mrs. Williamson asserts. In the instant case, the jury specifically found that neither of the wives impliedly assented to the establishment of the debt and that Mr. Williamson agreed to look only to the husbands to satisfy the debt. The trial court erred in disregarding these findings. We reverse the judgment of the trial court against Riley Butler Dunlap and Peggy Wilkinson, and render judgment that Mrs. Williamson take nothing from these two defendants.

RAYMOND WILKINSON

Wilkinson asserts by his first point of error that a proper demand for payment was not made. The record reflects that the only demand for payment made was concurrent with the notice of acceleration. No demand was ever made for payment of the delinquent installments.

It is well settled that the holder of a note, which provides for acceleration of maturity at the election of the holder, must demand payment of the delinquent installment or installments before he can accelerate maturity of the note. Allen Sales and Servicenter, Inc. v. Ryan, 525 S.W.2d 863 (Tex.1975). We therefore reverse the judgment of the trial court and render judgment that the appellee take nothing.


author: OSBORN, Justice.

text:
    Angel RAYOS, Appellant, v. CHRYSLER CREDIT CORPORATION, Appellee.
    No. 08-84-00248-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 16, 1985.
    Rehearing Denied Feb. 13, 1985.
    A1 Melendez, El Paso, for appellant.
    Temple B. Ingram, Jr., Studdard, Melby, Schwartz, Crowson & Parrish, El Paso, for appellee.
    Before WARD, OSBORN and SCHULTE, JJ.
   OPINION

OSBORN, Justice.

This appeal from a summary judgment involves the meaning of the words “vehicle insurance” in an automobile retail installment contract. We conclude that the Ap-pellee has failed to meet its burden to establish that an automobile extended service plan is vehicle insurance. We reverse and remand.

On May 11, 1983, Angel Rayos purchased a new Dodge Aries automobile from Airway Dodge, Inc. and signed a retail installment contract which provided for forty-eight monthly payments of $242.79 each. Included in the total amount financed was $495.00 paid to Chrysler Corporation for its extended service plan. This provided an extended service plan on the vehicle for five years or 50,000 miles. After being notified the service plan was effective, Mr. Rayos requested cancellation of the service plan. On July 18, 1983, Chrysler Service Contract Company wrote to Mr. Rayos that the protection plan contract had been can-celled and a check sent to the dealer. He endorsed the check made payable to him and Chrysler Credit for $495.00, and it was his intention that the check be applied to his monthly payments for August and September with Chrysler Credit. Instead, Chrysler Credit applied the payments as a credit to the last two installments due under his retail installment contract. In October, the car was repossessed because of a default in making the August and September payments. Rayos then filed this suit for conversion of his automobile.

The sole question on this appeal is whether Chrysler Credit Corporation was authorized to credit the $495.00 check to the last two installments under the retail installment contract, in which event there was a default authorizing a repossession, or whether the check should have been credited to the next two payments becoming due, in which event there would have been no default.

Chrysler Credit, the moving party in the summary judgment proceeding, was required to establish at least one element necessary to plaintiffs cause of action did not exist, or establish as a matter of law a defense to the alleged cause of action. Menchaca v. Menchaca, 679 S.W.2d 176 (Tex.App.—El Paso 1984, no writ); Mostek Corporation v. Chemetron Corporation, 642 S.W.2d 20 (Tex.App.—Dallas 1982, no writ). In this case, Chrysler was required to show a default which authorized the repossession of the vehicle, and the question of default turns upon when the check for $495.00 was required to be credited on the installment contract.

The installment contract provides in paragraph G of the “Additional Terms and Conditions:”

Buyer agrees to keep the property insured at Buyer’s expense against substantial risk of damage, destruction, or loss for so long as any amount remains unpaid on this contract, with loss payable to the Creditor as its interest may appear, and that Buyer will deliver all such insurance policies upon receipt to the holder of this contract. Buyer shall not be relieved of the obligation to procure and maintain vehicle insurance due to the inclusion of same in this contract, but such inclusion only authorizes Creditor to attempt to obtain such insurance on Buyer’s behalf through an authorized insurance agent. If Creditor fails to procure such insurance, the amount so included in the Total of Payments payable hereunder shall be credited to the last maturing instalments hereunder in inverse order of maturity, except to the extent applied by Creditor toward payment for comparable insurance protecting the interest of Buyer and Creditor or Creditor only. Upon cancellation or other termination of any vehicle insurance, the refund of premiums received by Creditor will be credited or applied in a like manner.

We hold Appellee has failed to establish that “any vehicle insurance” in the last quoted sentence of the installment contract includes the Chrysler Protection Plan which provided the five year-50,000 mile extended service.

There has been no evidence presented that Chrysler Service Contract Company is authorized to write insurance in the State of Texas. There is no proof in the record that a policy of insurance was issued to Appellant. The record contains a letter to Mr. Rayos advising that he was covered by the Chrysler Corporation Protection Plan. The “ownereard” and “Plan Provisions” are not in the record. Certainly the letter to Mr. Rayos is not an insurance policy.

The letter forwarding the provisions of the protection plan would seem to indicate that the plan requires service from a Chrysler Corporation Dealer and the plan may be more in the nature of a warranty to repair certain defects than an insurance policy which undertakes to pay a sum of money upon certain conditions. Warranties are not considered contracts of insurance although they may contain all the essential elements of an insurance contract. GAF Corporation v. County School Board of Washington County, Virginia, 629 F.2d 981 (4th Cir.1980). In Transportation Guarantee Co. v. Jellins, 29 Cal.2d 242, 174 P.2d 625 (1946), the court concluded that the question is whether looking at the plan of operation as a whole, “service” rather than “indemnity” is the principal object and purpose of the agreement. Under that test, we believe a five year-50,000 mile owner protection plan to be effectuated by certain authorized dealers is one to provide a “service.”

Basically, a warranty is issued to provide protection against defects or failures in a product, whereas an insurance policy is issued to provide reimbursement or indemnity based on an accident or occurrence unrelated to any defect or failure in the product. An owner protection plan would seem to be more in the nature of a warranty rather than being in the nature of insurance. Since Appellee has failed to meet its burden to establish that the check which was endorsed to it was a refund for “vehicle insurance,” we sustain Appellant’s Point of Error No. One.

The judgment of the trial court is reversed and the cause is remanded to the trial court.


author: FENDER, Chief Justice. HILL, Justice, JORDAN, Justice,

text:
    William E. NORMAN, Appellant, v. Marsha D. NORMAN, Appellee.
    No. 2-84-077-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 16, 1985.

      William C. Odeneal, Dallas, for appellant.
    Burt Barr & Associates and Burt Barr, Dallas, for appellee.
   OPINION

FENDER, Chief Justice.

This is an appeal from a judgment nunc pro tunc entered December 13th, 1983. Appellee (movant below) filed a motion for contempt alleging that appellant was $600 in arrears on his child support payments. Appellant testified at hearing that he had unilaterally reduced the payments from $400 to $200 a month for the months of September, October and November, 1983. Appellant asserted as defenses that (1) he had previously made over-payment to ap-pellee, and that (2) since the couple’s son had started living with him, newly enacted TEX.FAM.CODE ANN. sec. 14.09(e) (Vernon Supp.1984) permitted him to reduce payments.

After a hearing on the matter, the trial court ruled that appellant was not in contempt of court because he had mistakenly relied on an erroneous interpretation of sec. 14.09(e). However, in his judgment nunc pro tunc the trial court ordered appellant to pay $600 in back child support that he owed. Appellant was also ordered to pay appellee’s attorney’s fees of $250.00.

We affirm.

In his first point of error appellant asserts that the judge improperly reduced the unpaid child support payments to judgment. Appellant cites authority which states that a reduction to judgment cannot be made unless it was first pled. This reasoning is inapplicable here, however, because the trial court did not reduce the unpaid child support payments to judgment as understood by sec. 14.09(c) of the Texas Family Code. Rather he simply reaffirmed, the obligation of appellant to pay child support. The judge’s order did not constitute a reduction to judgment because it does not allow appellee to execute on appellant’s property in order to satisfy the unpaid child support. In fact, the trial court acknowledged that if appellant refused to pay the back child support payments appellee could come back and file another contempt motion. Appellant’s first point of error is overruled.

In his second point of error appellant contends that an award of attorney’s fees is not proper since he was not found to be in contempt. However, under TEX.R. CIV.P. 308-A the trial court was authorized to assess attorney’s fees based on appellant’s default, even though he was not held in contempt. Smith v. Smith, 643 S.W.2d 523, 525 (Tex.App.—Austin 1982).

In his third point of error appellant claims the judgment is against the great preponderance of the evidence. In this regard, appellant urges that his testimony and the testimony of appellee show that appellant had established an affirmative defense to the contempt action as provided by TEX.FAM.CODE ANN. sec. 14.09(e) (Vernon Supp.1984). That provision reads:

(e) If the managing conservator has voluntarily relinquished to a possessory conservator under court order to pay child support the actual care, control, and possession of a child in excess of the court-ordered periods of possession of and access to the child, the possessory conservator may affirmatively plead and prove the fact that he or she has supplied actual support to the child as a defense in whole or part to a motion for contempt for failure to make periodic payments according to the terms of a court order.

Before we can evaluate the evidentiary question here raised by appellant, we must first determine what the legislature meant by a managing conservator “voluntarily relinquishing” a child to a possessory conservator. The trial court reasoned that for there to be a voluntary relinquishment there must be some kind of formal agreement between the managing conservator and possessory conservator, rather than just a de facto change of residence of the child. In other words, a managing conservator cannot merely tolerate or acquiesce in a child’s change of residence, she or he must affirmatively agree to it.

We agree. First, we note that “relinquish” means to abandon, to give up, to surrender, or to renounce. Black’s Law Dictionary, 1161 (5th ed. 1979). To relinquish a child requires a greater amount of affirmative action than to tolerate or acquiesce in that child’s change of residence. Second, we believe that any lesser standard than one of affirmative agreement by the managing conservator would seriously undermine the sanctity of a trial court’s determination that the possessory conservator should make child support payments of a certain amount. Further, a lesser standard than one of affirmative agreement would create an environment in which a possesso-ry conservator might be tempted to induce a child to live with him. If the managing conservator then failed to take legal action because of ignorance, fear of high legal fees, or some other similar reason, the pos-sessory conservator could then reduce child support payments.

In applying this standard to the case at bar, we must consider all the evidence, both that in support of and contrary to the trial court’s finding that the mother had not voluntarily relinquished the child, to determine if the judgment is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). The record shows that the mother testified that the child in question, a 16-year-old boy, left her residence in April, 1983, and went to reside with his father. The mother stated she knew the child was residing with his father, but she claimed it was without her permission. She admitted that she had never filed any motion to compel him to return home, but stated she did not think she could take such action or make the child come home. Appellant stated that the child had begun residing with him some time before April, 1983, but as noted above, the mother’s testimony contradicts this assertion. Appellant also stated that he had provided all the child’s support from the time the child began to reside with him, which the record shows was no later than April, 1983. As this statement was made at a hearing in December, 1983, it appears appellant had been fully supporting the child for a period of about seven months, although it was not until September, 1983, that he began to reduce his child support payments.

After considering all this testimony, we find that the judgment is not against the great preponderance of the evidence. There is no testimony that the mother affirmatively agreed to relinquish the child to appellant. Appellant’s third point of error is overruled.

In his fourth point of error appellant claims that the trial court should have taken into account previous overpayments of child support. Although appellant apparently introduced into evidence a copy of the record of child support payments made to Dallas County, no copy of that document appears in the record on appeal. However, even assuming that appellant did in fact make overpayments it was not reversible error for the trial court to reaffirm appellant’s obligation to make monthly payments.

We can not accept appellant’s implicit argument here that an obligation to make child support payments is somehow like a commercial installment contract for which prepayments can be taken into account. Appellant has produced no authority to show that previously made excessive contributions for child support must be credited by the trial court in a contempt action. Appellant made the overpayments more than two years prior to his decision to reduce his child support payments, and there is no evidence that such overpay-ments were anything but voluntary. His gratuitous decision to make such overpay-ments does not alter his obligation to comply with the schedule of child support payments as set forth in the divorce decree. Appellant’s fourth point of error is overruled.

The judgment is affirmed.

ASHWORTH and BURDOCK, JJ., join.

HILL, Justice,

concurring.

I concur in the result reached by the majority, because I believe that the mother’s testimony that the child is with the father without her permission but that she felt that she could not do anything about it because of his age is sufficient to support the trial court’s decision that the relinquishment was not voluntary. I do not agree, however, with the majority’s conclusion that there must be a formal agreement in order for there to be a voluntary relinquishment. For example, an older child might decide on his own to go live with the possessory conservator and the managing conservator might decide that the child’s decision was correct and permit the child to go. Since communication is very often a problem in these situations, it is possible that this could occur in the absence of any express agreement between the managing and possessory conservator. Such a relinquishment would be voluntary and the terms of the statute should apply. The absence of a formal agreement would not make such a voluntary relinquishment involuntary. Since so much interaction between managing conservators and posses-sory conservators is done on an informal basis, the requirement of a “formal agreement,” when none is required by the statute, would result, in many instances, in the defeat of the purpose of the statute.

JORDAN, Justice,

dissenting.

I respectfully dissent.

I disagree with the majority’s ruling on appellant’s point of error three. The undisputed evidence in this case convinces me that the sixteen-year-old boy in this case resided voluntarily with his father for one year with appellee’s tacit approval. She took no action to force the return of the child to her as managing conservator. The facts of this case trigger the application of TEX.FAM.CODE ANN. sec. 14.09(e) (Vernon Supp.1984) and permit the father to reduce the ordered child support as he did.

It is not necessary, under sec. 14.09(e) to have a formal or written agreement of relinquishment by the managing conservator. Actions or conduct of the managing conservator can, depending on the circumstances, constitute voluntary relinquishment. It would be manifestly unfair and unjust in this case to require the father to pay the full amount of court ordered support when the record shows unequivocally that for a year the child in this case lived with him without any protest or disapproval, written or otherwise, from appellee.

The judgment is against the great weight and preponderance of the evidence and is manifestly wrong and unjust. I would reverse the judgment for $600.00 back child support and $250.00 attorney’s fee.

JOE SPURLOCK, II and GRAY, JJ., join.


author: JORDAN, Justice.

text:
    J.M.R., Appellant, v. A.M., Appellee.
    No. 2-84-120-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 17, 1985.

      Joe Shannon, Jr., Fort Worth (on appeal only), for appellant.
    Law Offices of James C. Barber, Joe K. Crews, Dallas, for appellee.
    Charles M. Noteboom, Bedford, attorney ad litem.
    Before JORDAN, JOE SPURLOCK, II and GRAY, JJ.
   OPINION

JORDAN, Justice.

Appellee, at all pertinent times a resident of the State of New York, brought this action against appellant, a resident of Tar-' rant County, Texas, to establish the parent-child relationship between her son, now five years old, and appellant. This suit also asks for conservatorship and for support for the child. Appellant’s plea to the jurisdiction of the court was overruled and the case was tried to the court without a jury. A judgment was entered establishing the parent-child relationship, appointing a managing conservator, ordering child support and awarding attorney’s fees. From this judgment appeal is taken based on six points of error. Initials will be used to protect the identity of the child.

We affirm.

Appellant’s first point of error contends that the trial court erred in overruling his plea to the jurisdiction of the trial court. There was no request for findings of fact and conclusions of law and none were filed. In such a case, all facts are to be found in favor of the judgment, which must be affirmed on appeal if it can be upheld on any legal theory finding support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977); Holly v. Cannady, 669 S.W.2d 381, 382 (Tex.Civ.App.—Dallas 1984, no writ).

These implied findings may be challenged by “no evidence” and “insufficient evidence” points and where such points are raised, the standard of review to be applied is the same as that to be applied in the review of jury findings or a trial court’s findings of fact. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). It is unclear whether appellant is contending there is “no evidence” or “insufficient evidence” to support the trial court’s action in overruling appellant’s plea to the jurisdiction; accordingly, we will discuss both points on appeal.

In deciding a “no evidence” point, we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Stedman v. Georgetown Savings and Loan Ass’n, 595 S.W.2d 486, 488 (Tex.1979). If there is any evidence of probative force to support the challenged finding, then it must be upheld. Id.

Where the challenge to a finding is framed as an “insufficient evidence point,” we are to consider all the evidence, both that in support of and contrary to the challenged finding, to determine if the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); City of Lubbock v. South Plains Electric Cooperative, Inc., 593 S.W.2d 138, 143 (Tex.Civ.App.—Amarillo 1979, writ ref'd n.r.e.).

Where the implied findings of fact are supported by the evidence, it is the duty of the appellate court to uphold the judgment on any theory of law applicable to the case. Lassiter, 559 S.W.2d at 358; Ellis v. Waldrop, 627 S.W.2d 791 (Tex.App.—Fort Worth 1982); rev’d on other grounds, 656 S.W.2d 902 (Tex.1983). This is ‘So regardless of whether the trial court articulates the correct legal reason for the judgment. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939); Rheiner v. Varner, 627 S.W.2d 459, 462 (Tex.App.—Tyler 1981, no writ).

A.M., mother of the child whose interest is at stake in this lawsuit, was at the time this action was filed in 1982, a resident of the State of New York. J.M.R., appellant, was at that time a professional baseball player with the Texas Rangers of the American League and was a resident of Tarrant County, Texas. M.A.R., the child involved in this paternity action was born to appellee in New York City on November 4,1979. A.M. filed two actions to establish paternity and to require J.M.R. to pay child support in New York, New York. Both actions were dismissed for lack of personal jurisdiction over J.M.R.

A.M. then filed this action in a district court of Tarrant County, Texas on September 29, 1982, and J.M.R. promptly filed a plea to the jurisdiction of the court. After a hearing on this plea the trial court on April 12, 1983 overruled J.M.R.’s plea to the jurisdiction.

When the court assumed jurisdiction in April of 1983, jurisdiction of a suit affecting the parent-child relationship, including paternity, was governed by Act of February 14, 1979, ch. 584, sec. 2, 1979 Tex.Gen. Laws, 1202, 1202 (hereinafter referred to as TEX.FAM.CODE ANN. sec. 11.045), repealed by Act of May 20,1983, ch. 160, sec. 10,1983 Tex.Gen.Laws 691, 709. However, effective September 1, 1983, this section was repealed by the legislature and the Uniform Child Custody Jurisdiction Act was adopted. TEX.FAM.CODE ANN. sec. 11.51-11.75 (Vernon Supp.1984). We point out that while sec. 11.045 referred to suits affecting the “parent-child relationship,” sec. 11.51 et seq. refers to “child custody matters.” Compare sec. 11.045 with sec. 11.51-11.75. TEX.FAM.CODE ANN. sec. 11.53 (Vernon Supp.1984), dealing with jurisdiction, is otherwise substantially the same as repealed sec. 11.045. Compare sec. 11.53 with sec. 11.045.

Appellee relies upon two provisions of sec. 11.045 to establish jurisdiction in this action, TEX.FAM.CODE ANN. sec. 11.-045(a)(2)(A) and (C) which provide in pertinent part:

(a) A court has original jurisdiction of a suit affecting the parent-child relationship, whether or not the child is physically present in the state, only if one of the following conditions is met:
(2) it is in the best interest of the child that a court of this state assume jurisdiction because:
(A) the child ... and at least one contestant have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(C) it appears .that no other state would have jurisdiction under prerequisites substantially in accordance with this section....

Id.

Repealed sec. 11.045 is similar to sec. 3 of the Uniform Child Custody Jurisdiction Act and to sec. 11.51 et seq., Texas Family Code. However, sec. 11.045 is broader than either sec. 3 of the Uniform Child Custody Jurisdiction Act or new secs. 11.51 and 11.53, because sec. 11.045 specifically included any suit “affecting the parent-child relationship,” clearly including paternity actions, while secs. 11.51 and 11.53 by their express terms relate to “child custody matters.” Compare see. 11.045 with sec. 3 and sec. 11.51 and sec. 11.53. The State of New York has adopted the Uniform Child Custody Jurisdiction Act, N.Y.DOM. REL.LAW sec. 75-d (McKinney Supp.1984- • 85). This section is similar to Texas Family Code sec. 11.53 which confers jurisdiction in child custody determinations. Compare sec. 75-d with sec. 11.53. Again, however, the New York law deals with child custody determinations, and is thus not as broad as repealed sec. 11.045, which was the jurisdictional provision governing jurisdiction in this case at the time the matter was heard by the trial court. Compare sec. 75-d with sec. 11.045.

Subject matter jurisdiction in New York is conferred by sec. 511 of the Family Code Act, N.Y. FAMILY COURT ACT sec. 511 (McKinney 1983). For in personam jurisdiction, it requires personal service. Id. New York’s Long Arm Statute is found in sec. 302 of McKinney’s Civil Practice Law and Rules and provides for personal jurisdiction over acts by non-domiciliaries of New York only in specified and limited areas. N.Y.CIY.PRAC.LAW sec. 302 (McKinney 1972 and Supp.1984-85). While the New York Long Arm Statute was amended effective September 1, 1982, to embrace defendants in “matrimonial actions or family court proceedings,” the Act as amended does not specifically include actions to establish the parent-child relationship. Id. Accordingly, it is still somewhat doubtful whether the State of New York could entertain this paternity action in the future unless they acquired personal jurisdiction over the appellant.

J.M.R. relies exclusively on the case of Albers v. Ames, 616 S.W.2d 653 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ) to support his contention that the courts of Texas do not have jurisdiction to entertain paternity actions against a resident of the State of Texas. While we concede that the facts in Albers are similar to the facts in this case, we think there are distinctions between the two, and we therefore refuse to follow Albers in this particular case.

Albers, a resident of Colorado, brought a paternity action in that state against Ames, a resident of Texas. Id. at 654. The Colorado court dismissed for lack of jurisdiction over the nonresident father and the mother subsequently sued for the same relief in Texas. Id. The court sustained the plea to the jurisdiction and the mother appealed. Id. The Houston Court of Civil Appeals examined former sec. 11.045, Texas Family Code, which set forth the jurisdictional requirements for a suit affecting the parent-child relationship. Id. at 654-55. The court in Albers said Colorado has adopted COLO.REV.STAT. title 4, sec. 14-13-104 (1973), pointing out that it had been modeled after the Uniform Child Custody Jurisdiction Act and therefore it conclusively appears the State of Colorado would have jurisdiction over this case (sec. 11.-045(a)(2)(C)). Id. at 655. (Emphasis ours.) The court also pointed out that the Colorado court’s decision in dismissing Albers’ 1975 paternity suit was based on the court’s lack of jurisdiction over the alleged father as he was a nonresident of that state and there was no available authority at that time to obtain jurisdiction over the non-resident father. Id. The court also said that Colorado has now adopted the Uniform Child Jurisdiction Act and has enacted other relevant statutes which grant the Colorado courts jurisdiction over this paternity suit and over the alleged father. Id.

In this case, unlike Albers, it does not “conclusively appear” from the record that the State of New York would have jurisdiction in this case. As pointed out heretofore, the amended New York Long Arm Statute does not specifically mention defendants in paternity cases, and there is accordingly some question as to whether the New York courts could still obtain jurisdiction over this appellant. The question of personal jurisdiction of the New York courts over this appellant in a paternity action is not nearly as clear as the Houston court in Albers found that situation to be in Colorado.

Therefore, because in this case it is not shown that the New York statutes in question are adequate to provide subject matter and personal jurisdiction and where such facts do not “appear conclusively’’ of record, we hold that Albers is distinguishable from this case and should not be followed. It is submitted that the district court of Tarrant County, a constitutional court established by the legislature pursuant to TEX.CONST. art. V, sec. 1 has in personam jurisdiction over its residents. We cannot see how the legislature can limit the constitutional authority granted to district courts, and the legislature in the enactment of statutes cannot be charged with the intent to limit constitutional jurisdiction. Suit to establish paternity and support is a suit in personam, is transitory in nature, and may be maintained wherever a defendant is found. Conlon v. Heckler, 719 F.2d 788, 797 (5th Cir.1983). The trial court had inviolate jurisdiction of this cause without reference to any legislative act. Residence in a state is a valid basis for the exercise of in personam jurisdiction. Bulova Watch Company v. Steele, 194 F.2d 567, 571 (5th Cir.), aff'd, 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 319 (1952).

Jurisdiction of this paternity action must and does lie somewhere. It is past time to stop batting this legal ball all over the country; it is time to let it land in some court’s glove. Appellee has been battered from pillar to post and to and from various courts since the birth of her child, M.A.R., more than five years ago. After two unsuccessful attempts in her home state to establish paternity and receive child support, she was frustrated and then came to the father’s own state. To now say that a district court in Texas does not have jurisdiction over a Texas resident in a suit of this nature is to us ludicrous and we cannot say that. It is time to establish the identity of the father of this child, M.A.R., and to have that father ordered to pay reasonable child support for the child’s maintenance. Appellant’s first point of error is overruled.

In point of error two, appellant complains of the failure of the trial court to require the joinder of the child, M.A.R., as a party to the suit. He says that such joinder is required by TEX.R.CIV.P. 39. Appellant raised no objection at trial to the failure to name the child as a party personally, nor did he file a sworn plea alleging this defect in accordance with TEX.R. CIV.P. 93. See Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex.Civ.App.—Houston [1st Dist.] 1980, no writ). Appellant contends that the child is an indispensable party to these proceedings and that failure to join an indispensable party is fundamental error and may be raised for the first time on appeal. We disagree.

We do not find any provision of the Texas Family Code which requires that a child be joined as a party to any proceeding thereunder, except TEX.FAM.CODE ANN. sec. 13.07 (Vernon Supp.1984) which requires that a child must be a party to a settlement agreement. However, that section specifies that a child shall be represented as a party by a guardian ad litem appointed by the court. While not specifically named personally as a party to this action, the child, M.A.R., was a party through his ad litem, attorney Charles M. Noteboom, who was appointed as ad litem by the court prior to trial. The ad litem represented M.A.R. all during the trial, in pretrial hearings, and has filed a very capable brief on this appeal. See Pleasant Hills Children’s Home, Etc. v. Nida, 596 S.W.2d 947, 951 (Tex.Civ.App.—Fort Worth 1980, no writ); Peterson v. Peterson, 502 S.W.2d 178, 179 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ).

In Peterson the court after pointing out an appearance was filed on behalf of the children in a custody case by the ad litem, said that the district court was empowered on its own motion, to make the children parties to the proceedings if it determined, in its discretion, that it was just and proper to do so. Peterson, 502 S.W.2d at 179. See also Durham v. Barrow, 600 S.W.2d 756 (Tex.1980), where it was held that a young child who was the subject of an adoption action was not a necessary party to the suit. Id. at 761. The court apparently made this determination because of the adoption statute which, like the paternity statute, does not require service on or notice to that child.

We hold, therefore, that in the first place it was not strictly necessary to name this child personally as a party to the lawsuit, and if it were, that he was a party by and through the appointment of his able guardian ad litem. Appellant’s point of error two is overruled.

J.M.R. next argues, in point of error three that it was error for the trial court to admit into evidence at trial the transcribed testimony at a pretrial hearing held a week before from the witness Sally Williams. Sally Williams was a serologist, appointed by the court pursuant to TEX. FAM.CODE ANN. sec. 13.01-13.09 (Vernon Supp.1984) to perform blood tests upon J.M.R., A.M. and M.A.R., the parents and the child involved in this case. The court conducted a pretrial hearing at which the serologist testified, in accordance with the requirements of sec. 13.04 of the Family Code. This hearing was held on November 4, 1983, just one week before trial on the merits was conducted. Sally Williams testified fully, both on direct and on cross-examination, and concluded that J.M.R. cannot be excluded as the biological father of M.A.R.

Appellant argues that TEX.R.EVID. 804(b)(1) permits the introduction of testimony or of a deposition in another proceeding only if the declarant is unavailable as a witness, and says that it was not shown here that Sally Williams was unavailable as a witness.

Section 13.04(c), Texas Family Code, provides that “[a]ll evidence presented at the pretrial conference is a part of the record of the case.” Id. Thus, whether or not appellee’s exhibit number five, the transcript of Sally Williams’ pretrial testimony, was admitted, the evidence was a part of the record before the court. We think that under the circumstances of this case it was discretionary with the trial court whether to admit the pretrial testimony of the witness Sally Williams, at which all parties were present and had ample opportunity to examine and cross-examine.

Moreover, if there was any error in the admission of appellee’s exhibit number five the error was harmless, for the reason that the critical elements of Sally Williams’ testimony, found in plaintiff’s exhibit number five, were admitted during the trial as part of the ad litem’s case. Pretrial testimony of the serologist as to the testing of the blood of the parents and the child and her conclusion that J.M.R. could not be ruled out as the biological father of the child, was introduced at trial. In fact, when this evidence was offered by the ad litem during trial, an objection was made by counsel for appellant that the testimony of Sally Williams should not be read into evidence by the ad litem because it had already been admitted and that would be the best evidence. That objection was made on two different occasions to the admission of the testimony of the witness, Sally Williams. There was no harm shown even if the admission of the original testimony of Williams was improper.

Moreover, even if the admission of the pretrial testimony of the witness, Sally Williams, be considered erroneous, it is harmless error for the additional reason that there was more than ample evidence in the record, from the testimony of appellee and from photographic evidence of all three parties to this case, to support the trial court’s finding that J.M.R. was the biological father of M.A.R. Appellant’s point of error three is overruled.

Appellant’s point of error four claims that the report of the blood testing should not have been admitted because there was no showing that it was the blood of the child, M.A.R., which was tested. Appellant argues that because Mrs. Williams did not specifically point out or identify the child, M.A.R., as the one whose blood was tested, her testimony concerning the testing of M.A.R.’s blood should have been excluded. Appellant says that because she did personally identify J.M.R. and A.M. in the courtroom, she should have also identified the child, M.A.R., as the third person whose blood was tested. Of course, this was impossible, because the child was not present during trial.

There is simply no merit in this argument. Mrs. Williams did say that on certain dates she took blood samples from J.M.R., A.M. and the child, M.A.R. Williams personally identified the child from whom she drew the blood sample upon which she conducted her test as M.A.R. born in November, 1979. A.M., appellee, testified that the last time appellant had visited with the child was when she and the child were in the area for the blood tests.

The objection to the admission of the testimony concerning the sampling and testing of the child’s blood went to the weight of the evidence and not to its admissibility. Appellant’s point of error four is overruled.

In point of error five appellant says that the trial court abused its discretion in setting the amount of child support to be paid by appellant at $1,100.00 per month. Point of error six complains that there was insufficient evidence of the needs of the child to justify such an award of child support. We shall consider these points together.

Since there were no findings of fact or conclusions of law requested by appellant, or filed by the court, all facts, as we have previously noted, must be presumed to support the judgment. The record shows that J.M.R., a professional baseball player, earned for the years 1981 through 1984 the gross amount of $1,825,000.00, including a $200,000.00 signing bonus in 1981. For the years 1983 and 1984 he made $450,000.00 each. Although his child, M.A.R., is now five years old, not one penny of these incredible earnings have been given to A.M. for the benefit of M.A.R. There is also evidence that although he is nearing the end of his career, and will not be making this amount of money much longer, he will be paid a minimum of $80,000.00 per year for ten years beginning in 1986.

Since there is ample evidence of the five-year-old child’s needs, and of the mother’s needs for benefit of the child, we think the amount of child support set by the court, under all these facts, was well within reason and within proper bounds. The amount set certainly did not represent an abuse of discretion. Appellant’s points of error five and six are overruled.

The judgment is affirmed.


text:
    Newell G. SMITH, Appellant, v. The HOME INDEMNITY COMPANY, Appellee.
    No. 2-84-074-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 17, 1985.

      Gene Gaines, Dallas, for appellant.
    Strasburger & Price, and P. Michael Jung and Michael R. Buchanan, Dallas, for appellee.
    Before HUGHES, JOE SPURLOCK, II and HILL, JJ.
   OPINION

JORDAN, Justice.

Newell G. Smith appeals from a summary judgment granted by the trial court in favor of The Home Indemnity Company in two separate worker’s compensation cases, consolidated for trial. The insurance company had moved for summary judgment alleging that the claims were filed after six months from the alleged date of injury without good cause for late filing, and Smith had made a voluntary, knowing and intelligent election of remedies by making claims upon and receiving benefits from his employer’s group health insurance. The trial court, without stating a reason, granted the motion and Smith appeals on two grounds of error.

We affirm.

The summary judgment proof consisted of: the pleadings, two depositions of appellant Smith, the deposition of the Custodian of Records for Lincoln National Life Insurance Company, the employer’s group health insurance carrier, facts deemed admitted by order of the trial court, and certified copies of the Industrial Accident Board’s files in these worker’s compensation cases.

On June 3, 1980, while in the employ of Safeway Stores, Inc. (Safeway), Smith allegedly suffered an occupational injury to his left foot, and was off work from June 4 through September 7, 1980, and again from November 13, 1980 through November 8, 1981. He underwent surgery on his left foot on November 19, 1980. This alleged occupational injury was not reported to Safeway, the employer, within thirty days of the alleged date of injury, June 3, 1980. On July 9, 1980, approximately one month after the alleged injury, Smith filed a claim with Lincoln National Life Insurance Company, Safeway’s group insurance carrier, stating in his application that his injury was not incurred in connection with his work. By requests for admissions which were not answered by Smith and which were deemed admitted by the trial court, Smith admitted that at the time he applied for the group insurance benefits, he understood that Safeway’s group health and disability plan covered off-the-job injuries and that Safeway’s worker’s compensation plan covered on-the-job injuries. He also admitted this in his deposition. Appellant thereafter received the full medical and disability benefits available under Safeway’s group coverage, including surgery on his left foot in November of 1980 paid for by Lincoln National Life.

On May 12, 1981, more than eleven months after his claimed injury, Smith filed a claim for Worker's Compensation with the Industrial Accident Board, claiming that his disability was work-related. He filed his notice of injury with his employer on July 21, 1981, and Safeway filed Employer’s First Report of Injury on July 22, 1981. By the requests for admissions, which went totally unanswered and which were deemed admitted by the court, it was established that Smith failed to give notice of the alleged injury of June 3, 1980 within thirty days from that date, and that he failed to file his claim for compensation within six months from that date. Appellant continued to accept group insurance benefits, obtained because of his representation that the disability was not work-related, even after he filed his claim for worker’s compensation.

Smith also alleged that he sustained an identical occupational injury to his right foot on November 20, 1981, right after he returned to work, but he again filed for and received group insurance benefits in connection with this second alleged occurrence. He also later filed a worker’s compensation claim for the November 20, 1981 incident.

Before considering the points of error raised on this appeal, we deem it necessary to comment on the effect of appellant’s unanswered requests for admissions, some sixteen admissions having been deemed by the court because of his failure to answer. Smith erroneously argues that his deposition testimony contradicts his deemed admissions, thereby creating a fact question. Such is just not the case. TEX. R.CIV.P. 169 specifically states in part that any matter admitted under this rule is conclusively established as to the party making the admission unless the court on motion permits withdrawal or amendment of the admission. Smith totally ignored the requests for admissions and they went unanswered, without a motion to extend time for answering, or any other limiting motion, right up through the trial of this case. Neither did he move the court to withdraw or amend the admissions after they had been deemed by the court. Admissions, once made or deemed by the court, may not be contradicted by any evidence, whether in the form of live testimony or summary judgment affidavits. Henke Grain Co. v. Keenan, 658 S.W.2d 343, 347 (Tex.App.—Corpus Christi 1983, no writ); American Title Company v. Smith, 445 S.W.2d 807, 809 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ). Where a party fails to respond to a request for admissions, “he will be precluded from offering summary judgment proof contradictory to those admissions.” Henke, 658 S.W.2d at 347.

Smith’s second point of error is based on claimed error in the granting of the summary judgment on the theory of election of remedies. In this regard he says that the affidavit of the custodian of the records of the group carrier suggests that the group insurance and worker’s compensation remedies were not in fact inconsistent, contending that the relationship of the two policies with each other was ambiguous and confusing. This theory is refuted by his admissions which establish not only that the group insurance remedy was limited to non-work-related disability, but that Smith knew this to be true. He next contends that under this summary judgment record there was medical uncertainty as to whether his foot problems were work connected or not, relying on a September 3, 1980 insurance claim form on which his podiatrist checked the box for work-related disability. The problem with this argument is that there is no evidence of any kind, deposition testimony or affidavit, that Smith ever saw this form or that he was ever told by the podiatrist or any other physician that his condition was work-related. Smith never filed an affidavit in response to Home Indemnity Company’s motion for summary judgment. He did not rely on this September 3, 1980 claim form because he never saw it.

As previously stated, the summary judgment proof showed that Smith applied for group insurance benefits known by him to be available only for a non-work-related disability. He thereafter accepted such benefits, both before and after he filed the worker’s compensation claims which formed the basis of this suit. The inconsistent positions taken by Smith in his application for and acceptance of group benefits, on the one hand, and in his present worker’s compensation claims amounted to inconsistent remedies and formed the basis for the granting of the summary judgment.

A case with a similar fact situation is Overstreet v. Home Indemnity Co., 669 S.W.2d 825 (Tex.App.—Dallas), rev’d, 678 S.W.2d 916 (Tex.1984). In that case the claimant first sought group insurance benefits, representing in writing that her disability was not work-related: then, later, following surgery, she decided the problem was work-related and filed her worker’s compensation claim. Overstreet, 669 S.W.2d at 826. In Overstreet also there were requests for admissions which were deemed admitted by the trial court. Id. at 827. The Court of Appeals held the facts in Overstreet sufficient to warrant summary judgment for the compensation carrier on the grounds of election of remedies as announced in Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848 (Tex.1980). Overstreet, 669 S.W.2d at 827-28. The Supreme Court, however, reversed and remanded the case to the Court of Appeals for consideration of other points of error. Over-street, 678 S.W.2d at 916. This very brief, rather opaque per curiam opinion simply said that “a majority of this court is of the opinion that the admissions do not establish as a matter of law that Overstreet made an ‘informed’ election under the rule of Bocanegra_” Overstreet, 678 S.W.2d at 916.

The admissions deemed against Smith, some of which are later referred to, are somewhat different than the admissions in Overstreet. Additionally, in this case, there were two depositions of appellant which were made part of the summary judgment record. Moreover, there is testimony, particularly in Smith’s first deposition, which supports the information contained in the admissions, and which clearly shows that he did make an informed election to first file his claim for group insurance.

Bocanegra, 605 S.W.2d at 848, was also a case where a worker filed claims for both group and worker’s compensation insurance, except in Bocanegra the female claimant first filed her worker’s compensation case, settled it, then filed her claim for group insurance benefits. Id. at 850. The Supreme Court, in a trenchant and persuasive opinion by Justice Jack Pope, held that where the insured lacked knowledge of whether the injury was occupational or non-occupational at the critical time, eventual settlement of the compensation claim was not an informed election that barred the insured’s action on the group medical and hospital policy to recover the amount of her medical and hospital bills resulting from non-occupational disease. Id. at 852-53. The court in Bocanegra, defined the elements of the election doctrine as follows:

The election doctrine, therefore, may constitute a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice.

Id. at 851. (Emphasis added.)

The admissions made by Smith in the case before us satisfy the requirements of election of inconsistent remedies enunciated in Bocanegra. By his admissions it was established that: (1) Smith filed a claim for group insurance benefits; (2) he received the full medical and disability benefits, including surgery, available under his employer’s group insurance coverage; (3) he knew at the time he applied for the group insurance that those benefits were for non-work-related injuries; and (4) at the time he applied for group insurance benefits, Smith knew the employer’s worker’s compensation insurance was for job-related injuries. These admissions, which could not be contradicted, establish beyond a doubt that the remedies sought by Smith are inconsistent.

The entire undisputed summary judgment proof in this case also places it squarely within the confines of the doctrine of election of remedies as defined in Bocanegra. The court held the doctrine of election of remedies was not applicable to that claimant so as to bar her subsequent claim for group insurance benefits, because there was confusion, even among the doctors, as to the causation of her ruptured disc. Id. at 853-54. The claimant’s actions were at all times consistent with the medical advice she was receiving. Her doctor told her initially that she might have hurt her back at work, and so she initially filed a worker’s compensation claim. Id. at 853. Upon being told by the doctor who performed her later surgery that her problems were not work-related, she promptly switched to a group insurance claim. Id. It was held that under the facts of that case, Mrs. Bocanegra lacked the requisite knowledge to bind her to an informed election. Id. at 854. There is a complete absence of such bewilderment or conflicting medical opinion in this case. Here, it is undisputed that at the time he applied for group insurance benefits on both feet, it was clear to Smith that his problem was unrelated to his work and that was the reason he applied for benefits under the group policy, which covered non-work-related disabilities. We do not have one or more doctors in this ease telling Smith, as was true in Bocanegra, that his condition was work-related and was an on-the-job injury. Moreover, Smith did not switch back and forth between group and worker’s compensation claim applications, following shifting medical opinions, as did Mrs. Bocanegra. Instead, he continued to file group insurance claims all along, and only filed his first worker’s compensation claim when his group disability benefits were about to expire.

We fail to see how there could be a clearer case of election of remedies, or rights, or states of facts than exists in this case. If this summary judgment proof does not bar a later claim for worker’s compensation after an earlier filing under a group insurance policy, on the theory of an election, then there can be no election of remedies, rights, or states of facts in this type of case. See Bocanegra, 605 S.W.2d at 851, 852. Under the proof in this record, including the admissions and the two Smith depositions, we hold that Smith made a successful, informed choice between two or more remedies, rights, or states of fact which was so inconsistent as to constitute manifest injustice. One cannot eat his cake and have it too. Appellant’s second point of error is overruled.

By his first point of error, appellant attacks the granting of the summary judgment on the theory that there was a fact issue as to whether he had good cause for late filing of his claims for worker’s compensation. With respect to the filing of the claim for worker’s compensation for the second injury, the one on November 20, 1981 to the right foot, the record is incomplete, and the briefs, frankly, confusing, on when this claim was filed, whether it was late or not, and whether good cause for late filing, if such there was, exists. We accordingly hold that the summary judgment proof will not support summary judgment as to lack of good cause for late filing of the right foot injury of November 20, 1981. However, this is immaterial in view of our holding that Smith made a voluntary and informed choice of remedies with respect to both claims, when he first applied for and accepted benefits from his employer’s group insurance.

As to the first occurrence, alleged work-related injury to his left foot on June 3,1980, it is clear from this record that that claim was not filed until May 12, 1981, eleven months after the alleged injury. That it was late cannot be denied. As to good cause, this summary judgment record is completely bare of any excuse or reason for the late filing. Smith filed no affidavit in response to the motion for summary judgment and offered no other evidence of any nature as to why he failed to file his worker’s compensation claim for almost one year after the alleged injury of June 3, 1980.

Smith argues that his claim was timefy filed because Safeway failed to file an Employer’s First Report of Injury as required by Act of June 6, 1979, ch. 309, sec. 1,1 1979 Tex.Gen.Laws 710, 710, amended by Act of June 19, 1983, ch. 483, sec. 1,; 1983 Tex.Gen.Laws 2815, 2817-18 (presently TEX.REV.CIV.STAT.ANN. art. 8307, sec. 7 (Vernon Supp.1984)), thus tolling the time for Smith to file his claim by virtue of TEX.REV.CIV.STAT.ANN. art. 8307, sec. 7a (Vernon Supp.1984). Section 7a provides, in effect, that the limitations period of six months does not begin to run against the claim of the injured employee until the Employer’s First Report of Injury has been furnished. Id. The time for filing a worker’s claim is tolled under this section only where an Employer’s First Report of Injury is required to be filed under the 1979 version of sec. 7. Camarillo v. Highlands Underwriters Ins. Co., 625 S.W.2d 11, 12 (Tex.Civ.App.— Beaumont 1981, no writ); Robicheaux v. Aetna Casualty & Surety Co., 562 S.W.2d 568, 570 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ); Lowe v. Pacific Employers Indemnity Co., 559 S.W.2d 870, 372 (Tex.Civ. App. — Dallas 1977, writ ref d n.r.e.). When no notice is given, no sec. 7 report is required. In this case, Smith admitted that Safeway was not notified of his alleged June 3, 1980 injury to the left foot until July 21, 1981. Safeway’s First Report of Injury was thereafter filed on July 22, 1981.

We hold that it was shown as a matter of law that Smith’s first worker’s compensation claim was filed almost a year late, without any showing whatever of good cause. Summary judgment on that basis as to the injury to the left foot was proper. Appellant’s first point of error is overruled only as to the left foot injury.

We affirm the judgment.