text:
    John David GAVENDA, et al., Appellants, v. STRATA ENERGY, INC., et al., Appellees.
    No. A14-83-817CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 20, 1984.

      Sam B. Cobb, Jr., Tyler, for appellants.
    K. Ray Campbell, Campbell, Athey & Zukowski, Pascal P. Piazza, Maurice Bre-senhan, Byrnes, Martin, Bresenhan & Si-nex, Houston, Kent A. Caperton, Caperton, Rodgers & Miller, Bryan, for appellees.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

This appeal involves the potential liability of the owner of the working interest in an oil and gas lease for additional royalties after the working interest owner had made royalty payments in accordance with the terms and representations contained in division and transfer orders. Appellants: John David Gavenda, individually and as temporary administrator of the estate of Victor Gavenda, deceased; Steven Edward Gaven-da; Bonnie Gavenda Myers; Cynthia Ga-venda Olfers; James P. Gavenda; Woodrow W. Gavenda; Doris A. Gavenda; Agnes Gavenda; Mildred S. Hejl; and Doris Ann Gayeski; filed suit against Appel-lees alleging that Appellees had underpaid the royalties due to Appellants. Appellees, Strata Energy, Inc., and Northstar Resources, Inc., denied any liability to Appellants due to the effect of division and transfer orders executed by Appellees or their predecessors in interest. Both sides filed Motions for Summary Judgment. Ap-pellees’ motion was granted and Appellants’ motion was denied. Appellants appeal from the adverse summary judgment. We affirm the summary judgment in part and reverse and remand in part.

On October 1, 1967, Appellants or their predecessors in interest executed a general warranty deed to Dr. D.J. and Lilyan Fein-stein. This deed conveyed to the Fein-steins the surface and mineral estates to land located in Burleson County, Texas. However, the deed contained a reservation of a royalty interest. That reservation states:

PROVIDED, HOWEVER, the Grantors herein except from this conveyance and reserve unto themselves, their heirs and assigns, for a period of fifteen (15) years from the date of this conveyance, an undivided one-half (¾⅛) non-participating royalty of all of the oil and gas in, to and under (sic) that produced from the here-inabove described tract of land. Said interest hereby reserved is a non-participating royalty and shall not participate in the bonuses paid for any oil and/or gas lease covering said land, nor shall the Grantors participate in the rentals which may be paid under and pursuant to the terms of any lease with reference to said land.

The Feinsteins were given the executive right to lease the property for oil and gas purposes. The Feinsteins later conveyed the surface and mineral estates and the executive right to lease for oil and gas purposes to Billy Blaha. In 1976, Blaha leased the property to Marshall Harrell in return for a one-eighth (Vsth) royalty.

Through a series of conveyances, Appel-lees each acquired a leasehold working interest in the oil and gas lease. Strata and Northstar, as leasehold working interest owners, entered into a joint operating agreement whereby Strata was named operator of the lease. The joint operating agreement provided that Strata, as operator and agent for all the working interest owners, should pay all the royalties which accrued upon obtaining production from the lease. Under the Joint Operating Agreement, all actions by Strata were made on behalf of Strata, individually, and on behalf of Northstar.

After obtaining production of oil and gas from the lease, Strata hired an independent attorney, C.R. Ebersole, to perform a title examination on the property and issue title opinions as to the royalty interests burdening the property. Ebersole’s title opinion stated that Appellants or their predecessors in interest owned an overall one-sixteenth (½6⅛) royalty interest. Strata prepared division orders upon Ebersole’s title opinion designating the amount of royalty interest owned by Appellants or their predecessors. These division orders were submitted to each royalty owner.

The division orders executed by Appellants or their predecessors in interest contained a warranty that the royalty interest was correctly stated therein as a fractional share of an overall one sixteenth (Vi6th) royalty interest. Strata, as operator, paid all proceeds from production based on the provisions and representations contained in the division orders. When there were changes in the ownership of the royalty, Strata sent the new royalty interest owner a transfer order to be executed. The transfer orders also contained representations and warranties that the royalty owner owned the royalty interest stated in the transfer order. The transfer orders also stated Appellants’ royalty was one sixteenth (¼6⅛). Strata paid royalties to Appellants based upon the representations and warranties contained in the division and transfer orders. There is no dispute that the Appellants received and accepted all the royalties which were due them according to the royalty interest stated in the division and transfer orders.

Appellants or their predecessors in interest did not attempt to revoke the division or transfer orders until September 29, 1982. On October 1, 1982, Appellants’ royalty interest terminated under the express provision of the reservation contained in the deed to the Peinsteins.

Appellants then filed suit alleging that the Appellees had paid substantially less than the royalties due under the reservation contained in the Feinstein deed. Each side filed a Motion for Summary Judgment. Appellants appeal from the trial court’s granting of Appellees’ Motion for Summary Judgment and the denial of Appellants’ motion.

Appellees’ motion listed four theories: Estoppel, Payment, Ratification, and Accord and Satisfaction, in support of Appel-lees’ right to a Summary Judgment. Each of these legal theories was based upon the effect to be given the division and transfer orders signed by Appellants or their predecessors in interest. Appellants predicated their motion Upon the reservation contained in the deed to the Feinsteins and the affidavit of a certified public accountant concerning the amount of the alleged underpayment of royalties.

Appellants raise two points of error. In the first point, Appellants argue that the trial court erred in granting Appellees’ Motion for Summary Judgment. The second point of error is that the trial court erred in denying Appellants’ Motion for Summary Judgment. The central issue is the effect of the execution of division and transfer orders upon Appellants’ suit to recover alleged deficiencies in royalty payments.

Texas law is that royalty payments made and accepted under the terms of division and transfer orders are effective until the orders are revoked. Chicago Cory. v. Wall, 156 Tex. 217, 293 S.W.2d 844 (1956); Exxon Corp. v. Middleton, 613 S.W.2d 240 (Tex.1981). This is true even if the division or transfer orders incorrectly state the interest of the royalty owner. In our case, Appellees paid royalties according to the interests stated in the division and transfer orders. Even if we assume that the division and transfer orders contain an erroneous measure of the Appellants’ royalty interest, an issue we do not decide, the orders, until withdrawn or modified, constitute the precise and definite basis for payments and payments made in accordance with the orders are final and binding. Middleton, 613 S.W.2d at 250.

In order to avoid the rule of Wall and Middleton, Appellants argue that: the rule is factually inapplicable; the signing of division orders does not constitute a conveyance of an interest in land; the rule, if applicable, only affects the cause of action against Strata; and the division and transfer orders are not binding upon the estate of Victor Gavenda.

Appellants argue that Wall is factually inapplicable and only protects the purchaser of oil and gas production and not the lessee or working interest owner. Appellants believe that, because Appellees were the working interest owners, the protection of the division orders does not apply. Appellants are not making a correct factual distinction. The Supreme Court opinion in Wall makes it clear that the Chicago Corporation was the lessee of the gas unit involved. We see no valid factual distinction which would give the Chicago Corporation the protection of the division orders but deny that protection to Appel-lees.

Appellants believe that the trial court interpreted the division and transfer orders so as to convey part of Appellants’ royalty interest. We agree that transfer orders are not conveyances of oil and gas interests. Wall, 293 S.W.2d at 847; Hogg v. Magnolia Petroleum Co., 267 S.W. 482 (Tex.Comm'n App.1924, judgmt adopted). However, we do not agree that the trial court interpreted the orders as a conveyance. The trial court simply gave the division and transfer orders binding effect until revoked by Appellants.

We cannot agree with Appellants that the binding effect of the division orders only protects Strata. As stated above, Strata and Northstar, as working interest owners, entered into a joint Operating Agreement which stated that Strata would be the operator of the lease. Under the agreement, all actions of Strata were made on behalf of both Strata and Northstar. The division and transfer orders protect both Strata and Northstar.

Finally, Appellants argue that the division and transfer orders are not binding upon the Victor Gavenda estate because neither Victor Gavenda nor any representative of his estate executed any such order. Appellees respond that the division orders and transfer orders are binding on those Appellants deriving any interest through Victor Gavenda, decedant. Victor Gavenda died before there was any production from the property. This was before the division and transfer orders were circulated and executed.

Appellees’ summary judgment proof showed that Victor Gavenda’s estate was administered and closed on December 6, 1971. The order closing the estate states that “property remaining on hand in said estate ..., be delivered to the heirs of Victor Gavenda as set out in said Final Account filed herein_” There is no ex-

press disposition in the order of Victor’s share of the royalty interest. The heirs of Victor Gavenda accepted the distributed assets of the estate and executed receipts and releases. Some of the Appellants or their predecessors in interest were listed as the heirs of Victor Gavenda. However, not all of the heirs of Victor Gavenda are Appellants in this case.

John David Gavenda was listed in Plaintiffs’ Third Amended Original Petition as the temporary administrator of the estate of Victor Gavenda, deceased. However, there is no evidence in the record that the Victor Gavenda estate has been reopened since it was closed in 1971. The attorneys for each side stipulated that the payments attributable to the royalty interest of Victor Gavenda, deceased, have been held in suspense because Defendants “did not know who was entitled to receive such payments.”

Edward Gavenda, Helen Skrabanek, and Agnes Gavenda were listed both as heirs of Victor Gavenda and as either Appellants or their predecessors in interest. Edward Ga-venda and Helen Skrabanek each signed division orders contained in the record. Agnes Gavenda signed a transfer order contained in the record. Appellees argue that the warranties and representations as to the interest owned contained in those division and transfer orders are binding. However, attached to the Division Orders contained in the record was a document labeled “Schedule A.” This document listed the interest of the Estate of Victor Gavenda separately from the interests of Agnes Gavenda, Helen Skrabanek, and Edward Gavenda. With the record before us, we cannot agree with Appellees that the warranties and representations contained in those division and transfer orders preclude the estate or heirs of Victor Gavenda from recovering the alleged underpayments. The division orders provided in part that: “Each of the undersigned certifies and guarantees that he, she or it (as the case may be) is the legal owner (hereinafter referred in as “Owner”), of, and hereby warrants the title to, the interest as hereafter set opposite Owner’s name ... (emphasis added).” The transfer orders stated “[t]he undersigned Transferee(s), hereinafter referred to as Owner, whether one or more, certifies and warrants that he is the lawful owner of the above interest, and requests payment be made to him as above stated and until further written notice.” Both the division and transfer orders incorporate Schedule A. Because Schedule A listed the interest of the Estate of Victor Gavenda separately, a fact issue remains as to whether Edward Gavenda, Helen Skrabanek and Agnes Gavenda also signed the division orders with respect to the interest they derived through the estate of Victor Gavenda. Clearly, these individuals have warranted the interests appearing opposite their names on the division or transfer orders signed by them. It is not clear that they have made warranties as to any other interest on Schedule A.

As to the interest of the estate of Victor Gavenda, we cannot say that Appellees have proven'that they were entitled to summary judgment as a matter of law. TEX. R.CIV.P. 166-A(c). As it relates to the interest of the estate and heirs of Victor Gavenda, the trial court erred in granting the summary judgment. The trial court was correct in granting the summary judgment in favor of Appellees as to the remainder of the Appellants whose royalty interests were covered by unrevoked division and transfer orders. Appellants’ first point of error is sustained in part and overruled in part.

Appellants have failed to prove that, even as to the royalty interest belonging to the Estate of Victor Gavenda, they were entitled to summary judgment as a matter of law. There is no summary judgment proof in the record that the Estate of Victor Gavenda, deceased, had been reopened or who is the legal representative of that estate. There is a fact issue as to whether the division and transfer orders signed by some of the heirs at law of Victor Gavenda cover the signatory heirs’ interest through the estate of Victor Gavenda. The trial court did not err in refusing to grant Appellants’ Motion for Summary Judgment. Appellants’ second point of error is overruled.

As to the royalty interest of the estate and heirs of Victor Gavenda, the judgment of the trial court is reversed and remanded. The remainder of the judgment is affirmed.


source: Caselaw Access Project

author: CANNON, Justice.

license: Public Domain

text:
    W.G. HALL Jr., et al., Appellants and Cross-Appellees, v. HARRIS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 50, et al., Appellees and Cross-Appellants.
    No. A14-84-237-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 20, 1984.

      Charles M. Jordan, Dibrell & Green, Galveston, for appellants and cross-appellees.
    Larry R. Yeselka, Vinson & Elkins, Houston, for appellees and cross-appellants.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

This is an appeal from a summary judgment rendered in favor of Appellees and Cross-Appellants Harris County Water Control & Improvement District No. 50, Hugh H. Jenkins, H. Underwood, E.M. Crum, G.W. Hanks, E.D. Allen, and B.F. Adams. Appellants and Cross-Appellees, W.G. Hall Jr. and CRK, Inc. (CRK), argue that genuine issues of material fact exist which preclude the granting of summary judgment. Cross-Appellants argue that the trial court erred in denying their motion to dismiss on the basis of the statute of limitations.

In January 1977, Hall and Charter Financial Group Inc. (Charter) entered into a joint venture for the purpose of real estate development. Charter had purchased in December of 1974 an 82 acre tract of land in El Lago, Harris County, Texas. After formation of the joint venture, the property was conveyed to CRK. That tract was to be developed under the joint venture into a residential subdivision named “Taylor-crest.” It was contemplated that 240-275 homes would be built in three development phases. Negotiations were commenced with Appellee Harris County Water Control and Improvement District No. 50 (the District) to procure water and sewer rights for the subdivision.

R. Eugene Read, an executive vice-president of Charter, and Hugh H. Jenkins, President of the District Board, had preliminary discussions concerning the District’s ability and willingness to provide water and sewer service to the proposed subdivision. On January 26, 1977, Read sent a letter to Jenkins. In that letter, Read sought formal answers from the District of several questions concerning the water and sewage service. On February 14, 1977, Jenkins, as President of the Board of Directors of the District, sent his response to Read. In his letter, Jenkins stated that “[t]he District is willing and able to provide water and sewer service for the initial 100 residences of your proposed development on the 82 acre tract in El Lago.... ” The February 14th letter also stated “[w]e would plan to expand water and sewage services to meet the increased requirements imposed by the additional 175 houses by the time they are constructed. This expansion of facilities within the existing District boundaries would be at District expense.” The letter continued with the following paragraph:

As stated previously, a written agreement would be required under the terms of which you would install storm sewer, water distribution and sanitary sewage collection facilities within your development to specifications acceptable to the District. You would then grant utility easements and transfer ownership of the facilities to the District after which the tract under development would be annexed into the district.

As indicated in the letter, the parties on April 19, 1978 executed a written agreement entitled “Contract for Water and Sewer Service.” In the written agreement, the District agreed “to provide such services subject to the terms and conditions as herein provided.”

In July of 1978, with Section I of Taylor-crest completed, Appellants sought approval of its facilities planned for Section II and services therefore. In order to obtain the needed approval for Section II, the developers’ plans and specifications were submitted to the Board’s engineers. Appellant Hall arranged to appear before the July 20, 1978 meeting of the Board in order to obtain preliminary approval. Prior to the July meeting, Read had represented the joint venture in all negotiations or transactions with the District. However, Read was not present at the July 20, 1978 meeting.

Prior to Hall’s presentation at the meeting, an application for water and sewage service for 92 condominiums was made by American Condominium Group. That request was approved by the Board. Hall then made his request for approval of Section II of Taylorcrest. The exact response of the Board is in dispute. The minutes of the Board meeting reflect that the plans and specifications for Section II were conditionally approved. Hall characterized the conduct of the Board as an “out and out denial.” Hall also said that one of the gentlemen at the meeting “was pointing his finger and shaking it and was very strong and determined and said that they weren’t committed to do anything at any time and that certainly is not what the contract and the agreement called for.” Shortly after the meeting, Hall wrote a letter to Jenkins expressing concern over the Board’s change in position and requesting that the Board reconsider its decision on serving Section II.

On September 29, 1978, Hall and Charter filed suit against the District. Jenkins responded to Hall’s earlier letter and sought to resolve the “misunderstanding” between the parties. In either February or March of 1979, the Board approved the plans and specifications for Section II of Taylorcrest.

Plaintiffs’ Third Amended Original Petition was filed on January 11, 1984. In part, Hall and CRK, Inc. alleged that the January 1977 and February 1977 letters exchanged between the parties constituted a contract which had been breached; the contract executed on April 19, 1978 had been breached; the defendants were es-topped from denying the existence of a binding contractual relationship; and the conduct of the individual directors of the Board and that of Adams, as the Superintendent of the District, constituted tortious interference with Plaintiffs’ existing contractual rights and prospective business relations.

The District and individual defendants filed a motion to dismiss on the basis of the statute of limitations and filed a motion for summary judgment. The trial court denied the motion to dismiss but granted the motion for summary judgment. Hall and CRK appeal the granting of the summary judgment. By a cross-point of error, the District and individual defendants appeal the denial of the motion to dismiss.

Hall and CRK raise four points of error. The first point of error is that the trial court erred in granting the motion for summary judgment because genuine issues of material fact exist as to Appellants’ breach of contract cause of action.

The summary judgment was granted in part because the trial court found there were no genuine issues of fact on the breach of contract cause of action. Appel-lees argued before the trial court that the exchange of letters in February and March 1977 did not constitute the formation of a contract and that the written contract executed in April 1978 was not breached by the District. Appellants argue that this segmentation of the facts was incorrect and produced an erroneous summary judgment. Appellants believe that the “facts of this case must rather be read as a continuum, or an integrated chain of events which as a whole established a contractual relationship.”

The summary judgment proof established that the exchange of letters in early 1977 did not establish a contractual relationship between the parties. The February 1977 letter from Read to Jenkins sought only that Jenkins, as representative of the District, formally answer several questions as to the District’s willingness and ability to provide water and sewage service to Taylorcrest. Jenkins’ reply letter, in March 1977, merely gave the District’s reply to those questions. In addition to those responses, the letter expressly provided that “[a]s stated previously, a written agreement would be required.... ” A written contract was executed in April of 1978. From these undisputed facts, the trial court was justified in determining that the exchange of letters did not constitute a contract between the parties.

Appellants argue that the District’s Board of Directors breached the April 1978 contract by failing to approve, at the July 20, 1978 meeting, the plans and specifications for Section II of Taylorcrest. The District responds by arguing that the Appellants did not comply with the conditions precedent to District’s obligation under the contract to provide service and that, even if the conditions were met, there is no proof that the contract has been breached.

The contract does list several conditions with which the developers had to comply. Two of those conditions were: 1) the developers had to acquire approval of the plans and specifications; and 2) the developers had to submit to the District a comprehensive development plan. The only condition precedent specifically raised in Appellees’ motion for summary judgment was the failure of the developers to supply the district with a comprehensive development plan. A letter from Jenkins to the developers, dated November 1, 1978, provides some evidence that the district had not yet been provided with a comprehensive development plan. However, from documents dated prior to the July 20th meeting of the board, it could be concluded that the developers had submitted the necessary development plan.

A summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. McFadden v. American United Life Insurance Co., 658 S.W.2d 147 (Tex.1983); Davis v. Houston Independent School District, 654 S.W.2d 818 (Tex.App. — Houston [14th Dist.] 1983, no writ); TEX.R.CIV.P. 166-A(c). The burden of showing the lack of fact issues is upon the party moving for a summary judgment and all doubts are resolved in favor of the non-movant. Wilcox v. St. Mary’s University of San Antonio, Inc., 531 S.W.2d 589 (Tex.1975); 4 R. MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS, § 17.26.12 (rev. 1984). Applying this standard, we cannot say that Appellees established as a matter of law that the development plan was not submitted. Appellees argue that the developers failed to meet other conditions. However, we refuse to address the additional conditions listed in the contract because they were not expressly presented in the motion for summary judgment. A motion for summary judgment must itself state the specific grounds on which the judgment is sought. Inwood Forest Community Improvement Association v. R.J.S. Development Co., 630 S.W.2d 751 (Tex.App. — Houston [1st Dist.] 1982, no writ). This court will not consider issues not expressly set out in the motion for summary judgment. TEX.R.CIV.P. 166-A(c).

Appellees argue that the April 1978 contract did not require the District to unconditionally approve the developers’ plans at the July 20, 1978 meeting. Appellees argue that the Board conditionally approved the plans and therefore the contract was not breached by the Board. The minutes of the Board meeting and the deposition testimony of the individual board members supports the conclusion that the plans were conditionally approved. However, Hall testified that the Board’s action was an “out and out denial” of the developers’ plans. Although there appears to be more summary judgment proof in support of Ap-pellees’ position, the weight of the evidence is not the standard to be applied in the review of the granting of a summary judgment. A movant must show that there are no fact issues, not that the fact issues must be resolved in the movant’s favor. We cannot say that Appellees proved as a matter of law that the contract was not breached. Point of error one is sustained.

Point of error two is that the trial court erred in granting the motion for summary judgment because there are genuine issues of material fact relating to the promissory estoppel cause of action. As an alternative to their breach of contract claim, Appellants alleged that they reasonably relied to their detriment upon representations by the District that it would grant timely and unconditional approval for the provision of water and sewer service. In the motion for summary judgment, the Appellees argued that “... it is inherently unreasonable to interpret the District’s statement that it would_ expand its services to meet those needs as houses were constructed to mean it could promise immediate service.” Hall’s deposition testimony was that he considered the February 14, 1977 letter from Jenkins and other alleged oral statements to be a commitment by the District to provide service and that the “commitment” was relied upon. Whether that reliance was reasonable is generally a question of fact and not a question of law. As movant, Appellees had the burden of showing by summary judgment proof that as a matter of law it was not reasonable for the Appellants to rely on any of the alleged representations. We are unable to say that Appellees met that summary judgment standard. Point of error two is sustained.

The third point of error is that the trial court erred in granting the motion for summary judgment because genuine issues of material fact exist as to Appellants’ claim that the directors and Adams committed tortious inference with Appellants’ existing contractual relations. The fourth point is that the summary judgment was improperly granted due to fact issues on Appellants’ claim of tortious inference with prospective business relations. The individual defendants responded by arguing that there is no evidence that they interfered with the April 19, 1978 agreement and assuming there is some evidence of interference, their conduct was privileged.

The individual Appellees rely heavily on Sakowitz, Inc. v. Steck, 669 S.W.2d 105 (Tex.1984). That case, like ours, involved a claim for tortious interference with existing contractual relations. The defendant, Sakowitz, moved for summary judgment arguing that any interference it may have committed was not without justification. The Supreme Court stated that to establish the cause of action of tortious interference with contract, a claimant had to show (1) that the defendant maliciously interfered with the contractual relationship, and (2) the interference was without legal justification or excuse. Sakowitz,

Inc. v. Steck, 669 S.W.2d at 107. The Supreme Court, after reviewing the summary judgment proof, held that because Sakowitz made a showing on its legal justification, but Steck produced no proof on the issue, the summary judgment was proper due to Steck’s failure to introduce evidence on one of necessary elements of her claim.

In this case, the individual defendants asserted that their conduct was justified and/or privileged. Appellants did not produce any summary judgment proof controverting the claim of justification. Under the authority of Sakowitz, Inc. v. Steck, we feel constrained to hold that the trial court was correct in granting Appellees’ motion for summary judgment on the tortious inference of contract cause of action due to the Appellants’ failure to controvert Appel-lees’ summary judgment proof. Point of error three is overruled.

Appellants’ final point of error deals with the claim of tortious interference with prospective business relations. The claim is based on the effect the conduct of the individual defendants had on the Appellants’ business relations with potential home builders in Taylorcrest.

Appellees moved for summary judgment on the basis that Appellants failed to allege that the directors acted with malice, there is no evidence in the record that the directors acted with the malice required to establish a claim of tortious interference with prospective business relations, and Appellants failed to show that the individual defendants were unjustified in their conduct. Since there is no evidence in the record that the individual defendants acted intentionally or maliciously to interfer with the Appellants’ prospective business relations and such intentional or malicious conduct is an element of Appellants’ claim, the trial court did not err in granting summary judgment as to the tortious interference with prospective business relations claim. Point of error four is overruled.

By a cross-point of error, the District and individual defendants argue that the trial court erred in not granting their motion to dismiss. In that motion, it is argued that any and all actions alleged by CRK, Inc. are barred by limitations and Hall is restricted to only the causes of action assigned to him by Charter, all others being barred by limitations.

When suit was first filed in this case CRK, Inc. was not listed as a party. CRK was not listed as a party in either of the two Original Petitions or Plaintiffs’ First Amended Original Petition. CRK was not listed as a party on any pleading until August 8, 1983 when Plaintiffs’ Second Amended Original Petition was filed. Even if we assume that the statute of limitations did not start running until March of 1979 when the District actually approved the plans for Section II of Taylor-crest, it would appear that CRK did not bring its cause of action within four years of March 1979. Therefore CRK, Inc. is barred by limitations from asserting any cause of action against Cross-Appellants. TEX.REY.CIV.STAT.ANN. art. 5527 (Vernon Supp.1984).

Although Hall was originally named as a plaintiff in the original petitions, he was not included as a party in Plaintiffs’ First Amended Original Petition filed July 11, 1983. Cross-Appellants argue that limitations were not tolled as to Hall’s later joinder as a plaintiff in Plaintiffs’ Second Amended Original Petition filed August 8, 1983. However, the record contains an assignment from Charter Financial Group, Inc. to Hall of whatever causes of actions Charter had. Even if Hall’s personal causes of action have been cut off by limitations, an issue we do not decide, Hall may still assert the causes of action covered by the assignment from Charter. The cross-point of error is sustained as to CRK, Inc., but is overruled as to Hall.

The judgment of the trial court is affirmed as to the tortious interference claims. The judgment is reversed and remanded as to the breach of contract and promissory estoppel causes of action. The judgment is reversed and rendered that CRK, Inc., is barred by limitations from asserting any cause of action.


author: DOYLE, Justice.

text:
    Virginia MELENDEZ, Appellant, v. Dr. A.W. BEAL, St. Elizabeth Hospital of Houston, Texas, Paula Penn and Rose Mary Simmons, Appellees.
    No. 01-84-00379-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 27, 1984.
    Rehearing Denied Jan. 24, 1985.

      David Heller, Stolaroff & Heller, Houston, for appellant.
    Douglas E. Markham, Butler, Binion, Rice, Cook & Knapp, Jerry R. Bonney, Houston, for appellees.
    Before EVANS, C.J., and DOYLE and BULLOCK, JJ.
   OPINION

DOYLE, Justice.

This is an appeal from a summary judgment against appellant in a medical malpractice case. Appellees based their motion for summary judgment on the medical malpractice limitation defense in Tex.Rev. Civ.Stat.Ann. art. 4590i, sec. 10.01 (Vernon Supp.1984).

Appellant Melendez entered St. Elizabeth Hospital in May 1968 for appellee Dr. Beal to surgically remove her gall bladder. Ap-pellees Paula Penn and Rose Mary Simmons were nurses who assisted in the surgery.

Appellant had no further problems until May 1981, when she began to experience a pulling sensation and pain in her abdominal area. She was admitted to Ben Taub Hospital in July for tests. The results revealed a retained sponge and an abscess under the liver. Surgery to remove the sponge showed the abscess to be secondary to the retained sponge and that the abscess had eroded into the small intestine. This erosion necessitated extensive surgical repairs in the intestinal tract. Plaintiff had no surgical operations between her 1968 gall bladder removal and the 1981 surgery to remove the retained sponge.

Appellant filed suit against appellees in August 1982. St. Elizabeth Hospital moved for summary judgment, which was granted on April 18, 1983. Paula Penn and Rose Mary Simmons moved for summary judgment, which was granted on April 9, 1984. Appellee Dr. Beal filed a motion for summary judgment in March 1984 on the ground that the filing of suit Í4 years after the alleged negligent acts was barred by ■ the statute of limitations. Appellant filed a response to the motion for summary judgment challenging application of the limitations and alleging that the appellees had no liability insurance coverage. The response was also supported with appellant’s affidavit establishing her discovery of the malpractice in 1981. Summary judgment in favor of Dr. Beal was granted on April 16, 1984.

Of the eight points of error filed, two through seven complain that summary judgment was improper because art. 4590i on its face and/or as applied herein violates various provisions of the Texas Constitution and the United States Constitution. Because of a recent Texas Supreme Court decision, we need only consider point of error four, which alleges a violation of Article I, section 13 of the Texas Constitution. There is no need to consider the other constitutional grounds, because article I, section 13 of the Texas Constitution provides additional rights for the citizens of Texas. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983).

The limitation in the Medical Liability and Insurance Improvement Act of Texas states:

Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment is completed;

Tex.Rev.Civ.Stat.Ann. art. 4590i, sec. 10.01 (Vernon Supp.1984).

Article I, section 13 of the Texas Constitution is the “open courts” provision, which provides in part: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”

Appellant argues that the limitation in article 4590i closes the courts to an injured party who has a complaint concerning an act of medical malpractice. Appellant contends that the “occurrence” in article 4590i, if applied on its face, bars her cause of action before she knew it existed.

The Supreme Court recently decided a case of medical malpractice in which the predecessor of article 4590i, sec. 10.01 was challenged on the “open courts” constitutional ground. Nelson v. Krusen, 678 S.W.2d 918 (1984).

In Nelson, parents brought a wrongful birth suit against a doctor, alleging that the doctor negligently advised them that the mother was not a genetic carrier of Duchenne muscular dystrophy. The trial court rendered summary judgment for the doctor on the grounds that the statute of limitations, art. 5.82, sec. 4 of the Texas Insurance Code, barred the parents’ claim. This statute has been repealed and essentially the same provisions are now contained in article 4590i, the limitations being challenged in the instant case. For this reason, the rationale used in construing art. 5.82, sec. 4 should also be applied to the construction of art. 4590i, sec. 10.01.

The Court, in Nelson, reasoned that “the legislature has no power to make a remedy by due course of law contingent on an impossible condition.” Id. at 921. The Court had previously found that legislative action that withdraws common law remedies for well established common law causes of action for injuries to one’s “lands, goods, person or reputation” cannot be sustained if the action is arbitrary or unreasonable. Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951, 955 (1955).

The Court recently applied the same reasoning in holding that the limitations provision of the Insurance Code unreasonably and arbitrarily denied a minor an established common law cause of action for malpractice. Sax v. Votteler, 648 S.W.2d 661, 667 (Tex.1983).

In Nelson, the Court extended the Sax holding to cover any person whose injuries are not immediately discoverable. The Court specifically held that the limitations provision of the Insurance Code “is unconstitutional, under the open courts provision, to the extent it purports to cut off an injured person’s right to sue before the person has a reasonable opportunity to discover the wrong and bring suit.” Nelson, 678 S.W.2d at 923. The rationale behind this holding is that a person whose injuries are not immediately discoverable is no more able to sue during the period of un-discoverability than are children during their period of legal disability. Id. at 923.

Appellant Melendez had no way of discovering the negligent act within two years from the date of the medical treatment. She was asymptomatic for 13 years following the subject medical treatment. She had no surgical procedures performed during this period, so there was no possibility of negligence on the part of another surgeon. Approximately six weeks after she first experienced pain, she discovered that the pain was due to the retained sponge. Approximately one year later, she filed suit for malpractice.

In Sax, the Court held that “the right to bring a well-established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right to redress.” Sax, 648 S.W.2d at 665. The court adopted a two-step analysis which we must follow. First, we find that appellant Melendez has a common law cause of action for malpractice that was restricted. Second, we must balance the reasonableness of the restriction against the purpose of the statute. The findings and purposes of the Medical Liability and Insurance Improvement Act indicate that the legislature intended to protect health care providers from rapidly increasing insurance rates, but in a manner that would not unduly restrict a claimant’s rights any more than necessary to deal with the crisis of increasing rates. Tex. Rev.Civ.Stat. art. 4590i, sec. 1.02 (Vernon Supp.1984).

The limitations provision is unreasonable when applied to appellant Melendez because it denied her a cause of action before she knew, or could have known, she was injured. The provision is not only unreasonable but also arbitrary, because it abolishes a common law cause of action without providing a reasonable alternative. The manner in which the purpose of the statute is achieved is not reasonable and unduly restricts appellant’s right, because it effectively abrogates the right to sue before knowing of the right, within the time provided by the statute. Point of error four is sustained.

Point of error one alleges error in granting summary judgment on the ground that article 4590i abolished the discovery rule. The discovery rule was the applicable law at the time of appellant Melendez’ surgery. It was first expressed by the Texas Supreme Court in 1967 and provides that:

[T]he cause of action for the negligent leaving of a foreign object in a patient’s body by a physician accrues when the patient learns of, or, in the exercise of reasonable care and diligence, should have learned of the presence of such foreign object in his body.

Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex.1967).

Since article 4590i was adopted in 1977, numerous cases have held that the limitations in that article is an absolute two-year limitation period. See, e.g., Littlefield v. Hays, 609 S.W.2d 627, 629 (Tex.Civ.App.— Amarillo 1980, no writ); Neagle v. Nelson, 658 S.W.2d 258, 260 (Tex.App. — Corpus Christi 1983, writ grt’d).

The Neagle case compares with the instant case in all particulars and is now pending before the Texas Supreme Court. Although the Corpus Christi Court of Appeals held that article 4590i abrogated the discovery rule, we disagree. In some situations, an absolute two-year limitation period is justified. It should not be used, however, when the results would be unreasonable, absurd, and unjust. It would be obviously unfair to appellant Melendez for the limitation to begin running on the date of her surgery. To do so would mean that patients would have to either file a lawsuit within two years — an impossibility — or have x-rays and tests done within two years to be sure the doctor had not been negligent.

We agree with appellant that the Supreme Court invoked the discovery rule not as an extension of the limitation period but as recognition that the statute of limitations takes away a legal remedy from an injured party before the injury is discovered. See Hays v. Hall, 488 S.W.2d 412, 413 (Tex.1972). In situations where there is no showing that the patient knew or could have known of the negligent treatment, the limitation in article 4590i should not be applied. The filing of suit within two years of discovery is timely. Point of error one is sustained.

In her final point of error, appellant contends that because of the purpose of the act, the limitations provision applies only to those health care providers carrying liability insurance. The purpose of the act is to establish standards for setting insurance rates for health care providers. It can be concluded, therefore, that the statute abolishes the discovery rule as to insured health care providers but not to those who are uninsured. See Littlefield, supra.

There is no evidence in the record before us on whether the health care providers carried liability insurance. Whether they did or did not is a question of material fact that appellant raised in her response to the motion for summary judgment. Appellant’s final point of error is sustained.

The judgment of the trial court is reversed and the case is remanded.


author: JUNELL, Justice.

text:
    Frank REECE aka Frank Reed, Appellant, v. STATE of Texas, Appellee.
    No. C14-84-392CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 27, 1984.

      Tom Roberson, Houston, for appellant.
    James M. Crane, Conroe, for appellee.
    Before JUNELL, PAUL PRESSLER and MURPHY, JJ.
   OPINION

JUNELL, Justice.

A jury found appellant guilty of murder. Punishment was assessed by the court at 25 years confinement in the Texas Department of Corrections. Appellant in two grounds of error claims that the trial court should have charged the jury on the law of self defense and granted him a new trial because of improper jury argument by the prosecutor.

Appellant’s claim of self defense is based primarily upon his own trial testimony, which for our purposes we take as true. Appellant and the deceased, Peter Chaney, had been acquaintances for about 10 months prior to the incident. Bad blood existed between them. Chaney had called appellant names. They had engaged in elbowing and pushing. On the evening of July 29, 1982, appellant arrived at a game room on Guadalupe Street in Houston.

The game room was across the street from a lounge. Three times Chaney encountered appellant, called him names and accused him of “messing with” his girlfriend. Each time appellant walked away. As appellant tried to walk away the last time Chaney struck him on the back of his head, knocking him to the ground. As appellant attempted to get up, Chaney kicked him in the side. Chaney then announced that he was going to get his .357 Magnum and “waste him.” Appellant got up, reached into the passenger side of the ear in which he had arrived and retrieved a shotgun. As the deceased walked across the street toward the lounge, appellant yelled, “Hold it.” Chaney turned around and started walking back toward appellant. Appellant took two steps back and asked Chaney twice not to walk up any further. The deceased caught hold of the gun barrel and a shot went off.

Again, accepting appellant’s version as true and ignoring other witnesses’ contrary testimony, we hold that he was not entitled to a self defense instruction because he presented no evidence that his actions were immediately necessary to protect himself. Cerda v. State, 557 S.W.2d 954 (Tex.Crim.App.1977); Smith v. State, 638 S.W.2d 208, 210 (Tex.App. — Port Worth 1982, no pet.), Tex.Penal Code Ann. §§ 9.31-9.32 (Vernon 1974 & Supp.1984). Chaney was not armed nor did appellant believe he was. Chaney had only threatened to get a gun. From appellant’s own testimony, he had an opportunity to retreat as the deceased walked back across the street. Appellant testified that he could not retreat because he was hurting from his beating, but he admitted that after the shooting he did run away.

Even if the facts raised the issue of self defense, no error was preserved. The defense attorney’s only objection to the charge was oral: “I would like to have the charge of self defense, standard form.” By failing to specify which self defense instruction he desired, appellant failed to properly preserve error. Cuddy v. State, — S.W.2d - No. 0989-83 (Tex.Crim.App. June 13, 1984 (not yet reported); reh’g granted Oct. 3, 1984). Tex.Code Crim.Proc.Ann. art. 36.14 (Vernon Supp. 1984). Appellant’s first ground of error is overruled.

Appellant’s second ground of error is also overruled for failure to preserve error. During jury argument the prosecutor mentioned that a witness had been subpoenaed but could not be located. His comments insinuated that appellant and his father harassed the witness and frightened him into running away. Defense counsel interrupted with, “He never testified to that, Judge.” The court responded, “Stay in the record. You heard the evidence in the case.” Appellant failed to obtain an adverse ruling, so nothing is presented for review. Graham v. State, 566 S.W.2d 941, 954 (Tex.Crim.App.1978) (en banc).

The conviction is affirmed.


author: CORNELIUS, Chief Justice.

text:
    John E. WALKER, Appellant, v. Evelyn L. ROBINSON, Guardian of the Person and Estate of Morris C. Mays, and Don Pinkham, Appellees.
    No. 9304.
    Court of Appeals of Texas, Texarkana.
    Dec. 28, 1984.

      Pat C. Beadle, Clarksville, for appellant.
    J. Michael Brock, New Boston, for appel-lees.
   CORNELIUS, Chief Justice.

John E. Walker appeals from a default judgment invalidating a deed executed by Morris Mays during the pendency of guardianship proceedings over his person and estate. We affirm the judgment.

In September of 1983, Evelyn Robinson was appointed guardian of the person and estate of Morris Mays on a finding that he was a person of unsound mind. On January 24, 1984, Robinson as guardian of Mays, acting under an order of sale issued by the probate court, sold the property at issue to Don Pinkham. Several days later Morris Mays, the ward, individually deeded the same property to Walker.

Robinson and Pinkham brought suit against Walker to remove Mays’ deed as a cloud on the title. Walker did not answer or appear at trial. On March 12, 1984, the trial court rendered a default judgment which declared that the deed from Mays to Walker was void and established Pink-ham’s clear title to the property. Walker timely filed a motion for new trial which was overruled by the trial court.

On appeal Walker asserts that the judgment is supported by insufficient evidence, the pleadings were inadequate, and the trial court erred in denying his motion for new trial.

Ordinarily no evidence is required to support a default judgment; the defendant’s failure to appear or answer constitutes an admission of all the allegations of the plaintiff’s petition. Proof is required only when the suit seeks to recover damages which are unliquidated or not proved by a written instrument. Watson v. Sheppard Federal Credit Union, 589 S.W.2d 742 (Tex.Civ.App. — Fort Worth 1979, writ ref’d n.r.e.). Damages were not at issue in this case so Walker cannot successfully attack the judgment on the basis of insufficient evidence.

With respect to the sufficiency of the pleadings, the general rule is that a plaintiff’s petition is sufficient to support a default judgment if it gives the defendant fair notice of what the plaintiff is seeking and why. It is not necessary that the petition be technically sufficient to state a cause of action in order to sustain a default. Edward’s Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958).

The petition in this case gave adequate notice of the relief sought, the land and deed in issue, and the reason relief was proper. It also alleged that the consideration paid by Walker had been paid into the registry of the court for repayment to Walker. It was thus sufficient against the challenge of a defaulted party.

A default judgment should be set aside and a new trial ordered if it is proved that the party’s failure to answer was not intentional or the result of conscious indifference on his part, and the motion sets up a meritorious defense and demonstrates that the granting of a new trial will occasion no delay or otherwise work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). For the motion to set up a meritorious defense, it must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiffs, and must be supported by affidavits or other evidence proving prima facie the existence of such a defense. Ivy v. Cornell, 407 S.W.2d 212 (Tex.1966). The meritorious defense alleged by Walker in his motion for new trial was that Mays was not incompetent at the time he deeded the land to Walker and that Walker had no notice of the guardianship or of the prior conveyance and was therefore a bona fide purchaser.

The record shows without dispute that Robinson had been properly appointed Mays’ guardian and that she had conveyed the property to Pinkham by authority of the probate court. Where property of the ward has been sold by the guardian pursuant to an order of the court in an active guardianship proceeding, a deed from the ward must be set aside where it conflicts with the deed from the guardian conveying the same property. Bennett v. Romos, 151 Tex. 511, 252 S.W.2d 442 (1952); Baldwin v. Davis Hill Oil Co., 245 S.W.2d 353 (Tex. Civ.App. — Beaumont 1951, writ ref’d n.r. e.). Because the facts alleged by Walker in his motion for new trial go only to the fact of the ward’s competency and not to the jurisdiction of the guardianship, it is an impermissible collateral attack on the guardianship and cannot constitute a meritorious defense. Carroll v. McLeod, 133 Tex. 571, 130 S.W.2d 277 (1939).

As the motion for new trial failed to set up a meritorious defense, it is unnecessary for us to consider whether Walker’s failure to answer was intentional or the result of a mistake. Pierson v. McClanahan, 531 S.W.2d 672 (Tex.Civ.App. — Austin 1975, writ ref’d n.r.e.).

The judgment of the trial court is affirmed.


author: KENNEDY, Justice.

text:
    Lela MEDLEY, Independent Executrix of the Estate of Eulus Medley, Deceased, Appellant, v. John MEDLEY A/K/A Curtis Medley, Appellee.
    No. 13-84-227-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 28, 1984.

      Glen Barnard, Harlingne, for appellant.
    Robert C. Sheline, Harlingne, for appel-lee.
    Before KENNEDY, UTTER and KEITH, JJ.
   OPINION

KENNEDY, Justice.

This is a suit for partition, for removal of cloud on title and declaratory relief regarding the ownership of certain real property.

Appellee was granted a summary judgment declaring that he is the owner of an undivided 12/14 of that real property. This appeal concerns two 1/14 undivided interests in that property. We affirm.

The facts are essentially undisputed. W.L. Medley, Sr., and Della Medley acquired, during their marriage, a certain 8.7 acres of land. W.L. Medley, Sr., died leaving his wife a life estate in his one-half community interest, with a remainder in one of their sons, Curtis (a/k/a John), ap-pellee. Subsequently, Della died intestate, leaving seven children living. Each child inherited a Vua interest from his or her mother. Curtis acquired a one-half interest from his father upon his mother’s death.

Among other transactions regarding this property, two of the children of W.L. Medley, Sr., and Della Medley executed deeds for their Vu share to both appellant and appellee, resulting in a dispute over the ownership of these two Vu undivided shares.

N.B. Medley executed a deed to Curtis dated March 20, 1980. Novella Medley Floyd executed a deed dated April 1, 1980. Both of these deeds were recorded on October 21, 1981.

On April 9, 1981, N.B. Medley executed a deed to E.C. (Eulus) Medley; and, on April 23, 1981, Novella Medley Floyd executed a deed to E.C. (Eulus) Medley. These deeds were recorded on June 16, 1981.

Appellee sued appellant and others for partition, for removal of cloud on the title of this property and for declaratory relief. On appellee’s Motion for Partial Summary Judgment, the trial court declared Curtis (a/k/a John) the owner of the two Vu undivided shares of the property.

Appellant, in her only point of error, asserts that the trial court erred in declaring appellee owner of the property because appellant’s deeds were recorded prior to appellee’s deeds. TEX.REV.CIV.STAT.ANN. art. 6627 (Vernon 1969) provides:

All bargains, sales and other conveyances whatever, of any land, tenements and hereditaments, whether they may be made for passing any estate of freehold of inheritance or for a term of years; and deeds of settlement upon marriage, whether land, money or other personal thing; and all deeds of trust and mortgages shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall be valid and binding.

Appellant asserts that appellee failed to plead and prove that the deeds conveying the property to Eulus were not for a valuable consideration or that Eulus had notice of the deeds to Curtis; therefore, under TEX.REV.CIV.STAT.ANN. art. 6627 (Vernon 1969), the deed to Curtis is void as to Eulus and his heirs.

The general rule is that the burden of proof for summary judgment is on mov-ant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. Bradley v. Quality Service Tanklines, 659 S.W.2d 33 (Tex.1983); Town North Bank v. Broaddus, 569 S.W.2d 489 (Tex.1978).

A mere want of consideration is not ground for the avoidance of an executed deed. Webster v. Mann, 52 Tex. 416 (1880); Pullman Wheat Growers Inc. v. Attebury Elevators, Inc., 502 S.W.2d 949 (Tex.Civ.App.—Amarillo 1973, writ ref’d n.r.e.). Consideration is only required for the junior deed. See TEX.REV.CIV.STAT. ANN. art. 6627 (Vernon 1969).

Appellee asserts that appellant has raised the issue of notice for the first time on appeal, that the burden of proof rests on appellant to show lack of notice and that appellant did not plead lack of notice.

It is well settled that the holder of a junior recorded deed has the burden of establishing, as against the holder of a senior unrecorded (or later recorded) deed seeking to derive the benefit of the above-quoted statute, the fact that he took title for a valuable consideration and without notice of the unrecorded instrument. Dow-son v. Bluhm, 252 S.W.2d 515 (Tex.Civ. App.—Beaumont 1952, no writ). This is because the Recordation Law of 1836 did not require the junior holder to pay value and be without notice. 1 Laws of the Republic 148 § 40 (Tex.1836). When the law was changed in 1840, the legislature gave the benefit of the recording statute only to junior holders for consideration who were without notice. See Ryle v. Davidson, 102 Tex. 227, 115 S.W. 28 (1909); TEX.REV. CIV.STAT.ANN. art. 6627 (Vernon 1969).

Because of this historical placement of the burden of proof, we will treat the invoking of Article 6627 as an affirmative defense. Appellant was required to come forward with evidence raising a fact issue on each element of the affirmative defense. Zayle Corp. v. Rosenbaum, 520 S.W.2d 889 (Tex.1975); Kehoe v. Lambert, 633 S.W.2d 576, (Tex.Civ.App.—Houston [14th Dist] 1982, writ ref’d n.r.e.). Tex.R.Civ.P. 94. We find that, there being no evidence on the issue of notice or lack thereof, no issue of material fact is left to be resolved. Appellant's point of error is overruled.

The judgment of the trial court is AFFIRMED.

      . E.C. (Eulus) Medley is now deceased. The appellant is his Independent Executor.

      . These provisions can now be found in TEX. PROP.CODE Ann. § 13.001, effective January 1, 1984. There was no intent to change the substance of the law. See Acts 1983, 68th Leg. p. 3475, ch. 576 § 7.


author: McKAY, Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Henry L. JACKSON, Appellee.
    No. 12-83-0059-CV.
    Court of Appeals of Texas, Tyler.
    Dec. 31, 1984.
    Rehearing Denied Jan. 31, 1985.

      Michael Dunn, Smead, Anderson, Wilcox & Dunn, Longview, for appellant.
    Glenn Perry, Longview, for appellee.
   McKAY, Justice.

This is a worker’s compensation case in which judgment was rendered for appellee based upon a jury verdict of total and permanent incapacity.

Appellee was a heavy equipment mechanic for Plains Machinery in Longview, Texas. On October 20, 1980, while helping to remove a 10,000 pound cylinder from its crate, the cylinder shifted, forcing the side of its packing crate to fall. Along with several employees, appellee attempted to avoid the falling crate. However, he stumbled and fell backwards onto a pile of steel I-beams, injuring his back.

In answer to special issues, the jury found that appellee sustained an injury while in the course of his employment, which injury was a producing cause of total and permanent incapacity. The trial court rendered judgment for appellant for a lump sum payment with allocation of attorney’s fees.

Appellant’s first three points complain that the trial court erred in failing to grant appellant’s request for jury instructions on intoxication, and for refusing to admit certain testimony pertaining thereto.

Appellant sought to have admitted before the jury testimony by appellee’s coworkers that they had seen him take pills on prior occasions and his conduct would subsequently become “hoppity or peppy like” and he would tell jokes. The trial court excluded this testimony.

The witness Millet (a fellow employee) testified that at the time of his injury ap-pellee “was not totally alert to everything that was going on; ... he just didn’t act fully aware that he was there ... he would stand back and wait until ninety per cent of the job was done and then he may help on the last ten per cent of it or so ... he really wasn’t all there ... he was kind of off in a daze, kind of on a cloud ... just wasn’t coherent to what was going on all the time.” The witness further said that the same condition existed at or immediately before the accident, and that after the accident appellee never said anything about hurting or otherwise “but just laying there like he was taking a nap basically.”

Another witness named McAlister, who formerly worked with appellee, testified ap-pellee acted “just like he was more or less in a daze ... walking around, wasn’t paying no attention to what he was doing,” and he did not appear to be mentally alert and know what was going on.

Also testifying about appellee’s appearance just before the accident was the witness Terry Bowen; he said he saw “just a person that was lost ... not sure of hisself as to what to do or his coordination ... clumsy, I guess would be the best way to explain it ... just unsure of hisself_ From the time we got there til the accident happened, it was as if he wasn’t there, and like stumbling around and just in a lost place.”

There was no testimony that appellee was seen taking any intoxicating substance on the day of his injury.

In The Aetna Casualty & Surety Co. v. Silas, 631 S.W.2d 551, 553 (Tex.App.— Beaumont 1982, writ ref’d n.r.e. with opinion), Article 8309, sec. 1 Tex.Rev.Civ.Stat. Ann., reading, “The term ‘injury sustained in the course of employment’ as used in this Act, shall not include (1) ...; (2) ...; (3) An injury received while in a state of intoxication,” was held to mean that an injury received while in a state of intoxication “is to be given its commonly understood meaning as a condition resulting from the use of alcoholic liquor.”

Even though the Supreme Court refused a writ, n.r.e. in the Silas case, in a per curiam opinion at 635 S.W.2d 425 the court said “... our refusal to grant this application for writ of error is not to be taken as approving the holding of the court of appeals that ‘in a state of intoxication’ is a condition resulting only from the use of alcoholic liquor. We reserve that question for future determination.”

It appears that a logical conclusion would be that intoxication could result from the “voluntary introduction of any substance into his body.”

The testimony of appellee’s fellow employees indicates that appellee was not mentally alert nor coherent nor fully aware of what was happening, and was in a daze and unsure of himself, “stumbling around and just in a lost place.”

Appellant requested the trial court to give two jury instructions, both of which were refused. They were:

“State of intoxication,” as used in this charge means an abnormal state brought about by alcohol or a drug to the point where physical and mental control is markedly diminished.
An injury received while the employee is in a state of intoxication is not in the course of employment.

In the case of Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), it is said at p. 824:

Under the provisions of Rule 301, Texas Rules of Civil Procedure, the trial court is authorized, upon motion and notice, to “disregard any Special Issue Jury Finding that has no support in the evidence.” The court may not, however, properly refuse to submit an issue or disregard the jury’s answer thereto merely because the evidence is factually insufficient to support the same.

Appellant cites and relies upon Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). That case said, at p. 824, that under Rule 301, TEX.R.CIY.P., the trial court may “disregard any Special Issue Jury Finding that has no support in the evidence,” but the trial court “may not ... refuse to submit an issue or disregard the jury’s answer thereto merely because the evidence is factually insufficient to support the same.” The opinion further states that a contention that an issue should not have been submitted because of the insufficiency of the evidence means that there is no evidence to warrant submission of the issue.

Applying the above rules to the instant case, the trial court was correct in refusing to submit the requested instructions as to intoxication because there was no evidence in the record to support them. The testimony of the witnesses Millet, McAlister and Bowen that appellee was not mentally alert, that he was in a daze, a person that was lost, and similar descriptions, was not evidence that he was intoxicated by a drug. We conclude there was no evidence that appellee was intoxicated from voluntary use of alcohol or drugs, and, therefore, the trial court did not err in refusing the instructions proffered.

Appellee cites Lumberman’s Underwriting Alliance v. Bell, 594 S.W.2d 569 (Tex.Civ.App. — Tyler 1980, writ ref’d n.r.e.), an opinion from this court. We agree with the language in that case, “To establish a fact by circumstantial evidence the circumstances relied upon must have probative force sufficient to constitute a basis of legal inference; it is not enough that they raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative conclusion.” Appellant’s points one, two and three are overruled.

Appellant’s point four asserts error was made in refusing to admit testimony of a doctor that appellee’s symptoms were consistent with a drug induced neuritis. For the reasons set out out above this point is overruled.

Judgment of the trial court is affirmed.

      . TEX.PENAL CODE § 19.05(b) (Vernon 1978) (Involuntary Manslaughter)
      (b) For purposes of this section, “intoxication” means that the actor does not have normal use of his mental or physical faculties by reason of the voluntary introduction of any substance in his body.


author: SHANNON, Chief Justice.

text:
    William E. GIBSON, Appellant, v. TEXAS MUNICIPAL RETIREMENT SYSTEM, Appellee.
    No. 14180.
    Court of Appeals of Texas, Austin.
    Jan. 9, 1985.
    Rehearing Denied Jan. 30, 1985.

      Nell Hahn, Daves, McCabe & Hahn, Austin, for appellant.
    Gaynor Kendall, Kendall, Randle, Finch & Osborn, Austin, for appellee.
    Before SHANNON, C.J., and EARL W. SMITH and BRADY, JJ.
   SHANNON, Chief Justice.

William E. Gibson appeals from the judgment of the district court of Travis County affirming an order of the Board of Trustees of the Texas Municipal Retirement System. The Board’s order denied Gibson’s application for a supplemental disability benefit. This Court will reverse the judgment of the district court.

At all times material, Gibson was an employee of the Fire Department of the City of Waco, a participating municipality of the Texas Municipal Retirement System. Gibson became a member of the Retirement System in 1962 and remained so until 1982 when he terminated his employment with the City of Waco.

Gibson has suffered from cardiomyopa-thy, a heart disease, at least from 1978. Cardiomyopathy is progressive and irreversible, and the only known treatment is rest and controlled activity.

Gibson asserts primarily that in the performance of his duties as a fireman on or about April 22, 1980, he aggravated his heart condition. More specifically, Gibson claims that on April 22, 1980, while assisting in the repair of a broken garage door at the fire station, he spent fifteen to twenty minutes with his arms extended over his head putting tension on a heavy spring. Immediately afterward he experienced chest pains in increasing intensity. Referring to that incident, Gibson’s physician, William N. Roddy, testified that “I can tell you the day that I saw him in April of 1980, after what had happened to him, it had done him harm that day. His activities of that day had damaged him. I think led him to where he is now.” Other medical evidence established that because of his heart condition, Gibson was unable to engage in gainful employment.

In 1981 Gibson filed with the Retirement System an application for (1) a standard disability retirement and for (2) a supplemental disability benefit. The application for the standard disability retirement was grounded upon his claim that he was incapable of engaging in gainful employment because of the heart condition. Public Retirement Systems, Title HOB, §§ 64.303 and 64.306 (1983). Gibson’s application for the supplemental disability benefit was predicated upon his assertion that his incapacity was a direct and proximate result of injuries sustained on April 22, 1980, in the performance of his duties as a fireman. Public Retirement Systems, supra § 64.-402.

By its order, the Board concluded that Gibson was, indeed, entitled to the standard disability benefit, but that he was not entitled to a supplemental disability benefit. In the terms of § 64.402, the Board found that Gibson’s incapacity was not “a direct and proximate result of the performance of his duties” as an employee of the City of Waco.

By two points of error, Gibson claims that the district court erred in affirming the Board’s order because the Board’s ultimate finding, that Gibson’s incapacity was not a direct and proximate result of the performance of his duties, was not supported by underlying findings of fact.

Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Tex. Rev.Civ.Stat.Ann. art. 6252-13a, § 16(b) (Supp.1984). There are at least three purposes for requiring a concise and explicit statement of underlying facts when the agency’s conclusions are couched in statutory language: (1) to insure that the agency gives full consideration to the evidence and a serious appraisal of the facts before rendering a decision; (2) to inform complaining parties of the facts found so that they may prepare and present intelligibly both a motion for rehearing to the agency and, if desired, an appeal to the courts; and (3) to assist the courts in properly exercising the function of judicial review. Miller v. Railroad Commission of Tex., 363 S.W.2d 244, 245-6 (Tex.1963); Shannon and Ewbank, The Texas Administrative Procedure and Texas Register Act Since 1976— Selected Problems, 33 Baylor L.Rev. 393, 409 (1981).

Gibson argues that the Board, by couching its causation finding in statutory language without filing underlying facts, failed to confront the pivotal question for decision: whether the on-the-job strain incurred in repairing the garage door on April 22, 1980, aggravated Gibson’s pre-existing heart condition. If, indeed, the strain aggravated the pre-existing heart condition then Gibson is entitled to receive the supplemental disability benefit. See Texas Employers’ Ins. Ass’n v. Frankum, 148 Tex. 95, 220 S.W.2d 449 (1949). Dr. Roddy’s testimony, previously quoted, supports Gibson’s aggravation thesis. Accordingly, the Board was required to make and file a finding regarding that contention. Because the Board failed to do so, it violated Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 16(b), and accordingly, its order is invalid. Bay City Federal Savings and Loan Ass’n v. Lewis, 474 S.W.2d 459 (Tex.1971).

In defense of the judgment, the Board claims that Gibson did not point out the flaw in his exceptions to the hearing officer’s proposal for decision, thereby waiving his right to complain of the omission of the underlying finding.

Texas Rev.Civ.Stat.Ann. art. 6252-13a § 15 provides:

[i]f in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, may not be made until a proposal for decision is served on the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs to the officials who are to render the decision. If any party files exceptions or presents briefs, an opportunity must be afforded to all other parties to file replies to the exceptions or briefs. The proposal for decision must contain a statement of the reasons for the proposed decision and of each finding of fact and conclusion of law necessary to the proposed decision, prepared by the person who conducted the hearing or by one who has read the record. The proposal for decision may be amended pursuant to exceptions, replies, or briefs submitted by the parties without again being served on the parties. The parties by written stipulation may waive compliance with this section.

A major function of exceptions to proposals for decision filed prior to the rendition of a final order of the agency is to afford an opportunity to a party to point out to the agency any portion of the evidence or any issue which may have been overlooked, misunderstood, or improperly appraised. The parties are thereby given a valuable opportunity not only to argue to the agency officers who will make the final decision what findings of fact and conclusions the record compels, but also to argue all applicable principles of law. See Consumers Water, Inc. v. Public Utility Commission of Texas, 651 S.W.2d 335 (Tex.App.1983, writ ref d n.r.e.).

This Court has examined Gibson’s exceptions to the proposal for decision. It is true that those exceptions are in narrative form and are rather general. The discussion found in the exceptions to the proposal, nevertheless, makes it plain that Gibson was relying, at least in part, upon the theory that the April 22, 1980, job-related incident aggravated his heart condition. The exceptions to the proposal for decision were sufficiently definite to apprise the Board of the claimed error. Accordingly, the Board was placed on notice of Gibson’s contention and was duty-bound to examine the evidence and to file findings, affirmatively or negatively, in that respect.

The judgment is reversed and the cause is remanded to the district court with instructions to return the cause to the agency for further consideration in light of this Court’s opinion.

      . The Board does not claim that Gibson waived his complaint by failing to preserve that complaint in a properly worded ground in its motion for rehearing. Gibson’s motion for rehearing provides only as follows:
      Claimant William E. Gibson hereby moves for a rehearing regarding the Opinion and Final Decision herein whose rendition date is December 16, 1982 on the grounds stated in Claimant's exception to Proposal for decision herein.
      Texas Rev.Civ.Stat.Ann. art. 6252-13a § 16(e) requires that motion for rehearing be sufficiently definite to apprise the agency of the claimed error and to allow the agency opportunity to correct the error or to prepare to defend it. Suburban Utility Corp. v. Public Utility Com'n, 652 S.W.2d 358 (Tex.1983); United Savings Ass’n of Texas v. Vandygriff, 594 S.W.2d 163, 168 (Tex.Civ.App.1980, writ ref'd n.r.e.).
      Gibson’s motion for rehearing plainly does not comply with § 16(e) but, as before mentioned, the Board does not assert waiver based on this ground.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Marvin M. FISHER, Jr., Individually and as Independent Executor of the Estate of Nola Fisher, deceased, Appellant, v. Charles L. WALKER, et al., Appellees.
    No. 08-84-00146-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 16, 1985.
    Rehearing Denied Feb. 20, 1985.

      Wm. Monroe Kerr, Kerr, Fitz-Gerald & Kerr, Midland, for appellant.
    W.B. Browder, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Midland, for appellees.
    Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a suit for declaratory judgment to determine the effect of the termination provisions in an oil and gas lease. The trial court entered judgment in favor of the lessees on the basis of stipulated facts. The court found that all obligations imposed upon lessees had been fully performed and that the lease remained in full force and effect as to the entire parcel of land covered by the lease. We reverse and remand for entry of judgment in favor of the lessor.

The dispute in this case revolves around an interpretation of a clause in an oil and gas lease entered into between Appellant, as lessor, and Charles L. Walker, et al., as lessees, on April 27, 1978. The agreement consisted of one document which set up ten separate leases, each controlling one-quarter section of land for a primary term of three years. With the exception of Paragraph 24 and Paragraph 25, the other terms of the lease agreement can be called standard in the industry. The dispute centers upon the interpretation of Paragraph 24, and involves Paragraphs 2 and 25.

24. Anything herein contained to the contrary notwithstanding, if this lease is not sooner terminated under other provisions hereof, from and after the expiration of the primary term, as the same may be extended under the provisions of Paragraph 2 hereof, this lease shall terminate insofar as it covers and pertains to all lands covered hereby and all geological formations in and underlying the lands covered hereby which are not contained in a producing proration unit that is specified and approved by the Railroad Commission of Texas, and from which geological formation and producing pro-ration unit oil, gas, or other liquid hydrocarbons are being produced in commercial quantities, or with respect to which geological formation and producing pro-ration unit there is a shut-in gas well, as defined and referred to in Paragraph 21 hereof, for which shut-in gas royalty payments have been made currently, if and as authorized in Paragraph 21 hereof.
.2. Subject to the other provisions herein contained, this lease shall be for a term of three (3) years from date, (called primary term) and as long thereafter as oil, gas or other hydrocarbons or any of them are produced in commercial quantities from said land or from lands with which said land is properly pooled under the provisions of this lease.
25. The lands covered by this lease and described herein are a number of separate tracts, with each separate tract being designated as such. It is intended that this lease shall be considered as a separate lease for each separate tract. Anything contained herein to the contrary, or apparently to the contrary, notwithstanding, production, production from or drilling or other operations on and for the exclusive benefit of any one particular tract, shall serve to continue this lease in force beyond the primary term hereof, with respect only to such particular tract, and further, shall serve to continue this lease in force during the primary term hereof without payment of delay rental with respect only to such particular tract. Should this lease terminate as to less than all of the separate tracts, covered hereby, the rental shall thereafter be reduced in the proportion that the acreage covered hereby is reduced by such termination.

The parties stipulated that there was at least one well drilled on each of the ten tracts during the primary term. However, the Appellant argues that Paragraph 24 terminated the lease as to each proration unit which did not have a completed well within its confines. All oil wells were producing from the San Andres formation for which the Railroad Commission of Texas has provided forty-acre proration units. A single gas well is in a 160-acre RRC spacing in the Yates formation and is a part of land not in dispute. Since there are four proration units per tract there is a total of forty proration units covered by the lease. It was stipulated which proration units had producing wells, and they total seventeen in number. Thus, the Appellant contends that since there were only seventeen forty-acre proration units that had producing wells at the end of the primary term, the lease would terminate as to the remaining twenty-three non-producing proration units and all formations other than the San Andres and Yates.

Appellees urge that the lease remains in full force and effect as to the entire 1,600 acres since, as lessees, they have complied with all the terms of the lease agreement by drilling at least one well on each of the ten 160-acre tracts and all were still producing at the end of the three year primary term. In effect, Appellees focus on the literal language of Paragraph 24 which states that the Paragraph terminates the lease “from and after the expiration of the primary term, as the same may be extended under the provisions of Paragraph 2,” and they argue that this provision restricts the termination provision of Paragraph 24 to the period of time after an extended primary term. Appellees urge that Paragraph 2 (the habendum clause) defines the “primary term” of their lease as not being merely the stated number of years given in this clause, but as also including the period of time which may be extended by production. Therefore, Appellees contend that since they are still operating in an extended primary term, Paragraph 24 has not yet become operable. They recognize that Paragraph 24 limits the duration of the leasehold estate but say that it has not been triggered.

The rules of construction here applicable are clearly stated in Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983):

When the provisions of a contract appear to conflict, they should be harmonized if possible to reflect the intentions of the parties. Harris v. Rowe, 593 S.W.2d 303 (Tex.1979). Generally, the parties to a contract intend every clause to have some effect and the Court will not strike down any portion of the contract unless there is an irreconcilable conflict. Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617 (1954).

We cannot then ignore Paragraph 24 — in effect strike it down — for the parties put it there with the intent that it have some effect. The law of contracts requires that the court examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983); R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517 (Tex. 1980). The construction urged by Appel-lees renders Paragraph 24 meaningless. The urged construction is that Paragraph 24 only applies after the primary term as the same may be extended by Paragraph 2, which paragraph provides that the “primary term” may be extended “as long thereafter as oil and gas are produced in commercial quantities.” That construction means that the lease must terminate before Paragraph 24 becomes effective. The sense of Paragraph 24 then becomes that the lease would terminate for non-production on forty-acre proration units after it had already terminated. Such construction makes the paragraph meaningless and is in violation of a cardinal rule of construction. Paragraph 24 and Paragraph 2 are not in irreconcilable conflict and can be harmonized. Paragraph 24 modifies Paragraph 2 by further refinement as to the lands it applies to. Paragraph 2 says “subject to the other provisions herein contained, this lease shall be for a term of three years (called primary term) and as long thereafter _” (Emphasis added). Paragraph 24 is one of the “other provisions.” It modifies the lands held by production by specifying proration units. Additionally, the parties gave Paragraph 24 priority over any other provision, saying — “anything herein contained to the contrary notwithstanding .... ”

The duration of the estate granted is traditionally determined by the habendum clause. 2 Summers, The Law of Oil and Gas, Perm.Ed. sec 303.1, p. 319. This need not be the case, for the instrument may provide elsewhere for the enlargement of the term stated in the habendum. See Stanolind Oil & Gas Co. v. Christian, 83 S.W.2d 408 (Tex.Civ. App.1935, writ ref’d); Humphrys v. Shelly Oil Co., 83 F.2d 989 (5th Cir. 1936).

Gulf Oil Corporation v. Southland Royalty Company, 496 S.W.2d 547 (Tex.1973). The construction problems in our lease arise from the fact that the parties put ten leases in one instrument with a further breakdown as to proration units and formations and yet using in some clauses the term “this lease.” For instance, Paragraph 2 says “this lease” shall be for a term of years and then as long thereafter as production continues. However, by Paragraph 25 it is made clear that “this lease” is ten separate leases and that “as long thereafter” applies separately to each lease. That is the topic of Paragraph 25— that there are separate leases and they are independent of each other and production, drilling and other operations on one extend the lease “only” to that lease. Yet, Appel-lees say that it was the intent of the parties that Paragraph 25 modify Paragraph 2, the habendum clause; that “but for” Paragraph 25 one well would hold the entire 1,600 acres. Their contention then is that they have obtained production on each of the ten leases and that suffices as to all lands. We do not agree. Paragraph 25 does not say that. It contains no words of grant or anything affirmative fixing a term for those leases. As to duration of the lease, it does not alter the terms of Paragraph 2. It simply defines “the lease” as being, in fact, ten separate leases with the negative result that compliance with Paragraph 2 as to one does not enure to lessees’ benefit as to the others. Paragraph 25 leaves unaffected the provisions of Paragraph 24. The Appellees have not complied with the provisions of Paragraph 24 and Appellant is entitled to terminate the lease in accord with that paragraph.

Appellees concede that Paragraph 24 limits duration, but their contention is that the paragraph has not been triggered. If we are correct in our contrary construction, then the stipulations of the parties meet the requirement that the lessor must bring the acts of the lessees strictly within the language of the restriction before termination will be decreed. This is the test prescribed in Knight v. Chicago Corporation, 144 Tex. 98, 188 S.W.2d 564, 566 (1945).

The judgment of the trial court is reversed and the cause is remanded to the trial court for entry of a judgment not inconsistent with this opinion.


author: FENDER, Chief Justice.

text:
    Kirksey N. PARKER, Administrator of the Estate of Randy Neale Parker, Deceased, Appellant, v. Sheri Humphrey PARKER, Appellee.
    No. 2-84-078-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 30, 1985.
    William F. Billings, Dallas, for appellant.
    Carter, Jones, Magee, Rudberg & Mayes and Lee M. Taft, Dallas, for appellee.
    Before FENDER, C.J., and ASHWORTH and BURDOCK, JJ.
   OPINION

FENDER, Chief Justice.

This appeal raises the question of whether a divorce decree can divest a designated beneficiary of her rights under a life insurance contract. The trial court granted summary judgment to the designated beneficiary.

We affirm.

In May, 1979, Randy Neale Parker (hereinafter Randy) was issued a $50,000.00 life insurance policy by Protective Life Insurance Company. Randy, who was married to appellee at the time, named appellee as primary beneficiary under the policy. On March 7, 1980, appellee and Randy, who had no children, were divorced.

On February 1, 1982, Randy died in an airplane accident without having changed appellee’s designation as primary beneficiary on the life insurance policy. Protective Life paid the insurance proceeds to appellee. Appellant (father of Randy and administrator of Randy’s estate) filed suit against appellee to recover the proceeds on behalf of the estate of Randy.

At trial appellee moved for summary judgment on the grounds that as it was undisputed that appellee was the designated beneficiary at the time of Randy’s death, then, as a matter of law, the insurance proceeds were properly payable to appellee. The trial court granted appel-lee’s motion for summary judgment.

In his first point of error appellant argues that the summary judgment was wrong as a matter of law because the divorce decree terminated any rights appel-lee may have had to the proceeds as the designated beneficiary. Appellant contends that the trial court, through the power vested in him through TEX.FAM.CODE ANN. sec. 3.63, has the power to, and in fact did in this case, terminate appellee’s beneficial interest in Randy’s life insurance policy. To support his contention, appellant notes that in that part of the divorce decree which dealt with property division, there were reciprocal provisions which awarded each of the ex-spouses all right, title, and interest to any and all policies of life insurance insuring his or her life. Appellant argues that the effect of this language was to dispose of all community property of the parties which included not only the ownership of the policies but the rights to the proceeds as well.

We disagree. Although the actual life insurance contract was not admitted into evidence, it is clear from the record before us that the policy gave Randy, as the insured, the absolute right and power to designate whomever he wished as the policy beneficiary. Furthermore, Randy’s right to designate was just as absolute and valid after the divorce as it was before the divorce. Just as Randy was free during his marriage with appellee to designate someone other than appellee as the beneficiary, he was free after the marriage ended to designate appellee, or more accurately, maintain her designation as, the policy beneficiary. Nothing in the divorce decree affected this right of Randy. See Partin v. de Cordova, 464 S.W.2d 956 (Tex.Civ.App. —Eastland 1971, writ ref’d).

We ascribe no special significance to the fact that the property division was decreed by the trial court pursuant to sec. 3.63. Appellant’s argument that a property division rendered by a divorce decree somehow has greater clout than one rendered by a property settlement agreement of the parties, makes no sense to us. In the absence of specific language dealing with both the ownership and beneficial interests of a policy, a decree or property settlement agreement which awards only right, title and interest of a policy to one spouse as his separate property is not to be construed as having terminated any beneficial interest that the other spouse may have had in that policy. See Pitts v. Ashcraft, 586 S.W.2d 685, 696 (Tex.Civ.App.— Corpus Christi 1979, writ ref’d n.r.e.). See also Gillespie ¶. Moore, 635 S.W.2d 927, 928 (Tex.App.—Amarillo 1982, writ ref’d n.r.e.) for an example of language held to be specific enough to divest an ex-spouse of his beneficial interest.

Appellant relies on McDonald v. McDonald, 632 S.W.2d 636 (Tex.App.—Dallas 1982, writ ref’d n.r.e.). In McDonald the court held that a divorce decree worded similarly to the one at bar divested the ex-spouse of her beneficial interests under an insurance policy. We decline to follow McDonald because we feel it is incorrect. We thus overrule appellant’s first point of error.

In his second point of error, appellant claims the trial court erred in rendering a summary judgment because there was a material fact issue as to whether Randy intended to make a gift of the proceeds to appellee.

In Scherer v. Wahlstrom, 318 S.W.2d 456, 459 (Tex.Civ.App.—Fort Worth 1958, writ ref’d) this court held that a purported change of beneficiary will be given effect only if the insured has “substantially complied” with the policy requirements to change the beneficiary. In the case at bar the summary judgment proof showed that there was no substantial compliance with the provisions of Protective Life to change the beneficiary. The proof showed that a life insurance agent spoke to Randy on at least three occasions between the time of the divorce and Randy’s death to advise him that his ex-wife was still the designated beneficiary. There was never any evidence that Randy attempted to change the beneficiary. Thus, Randy’s intention in regards to the disposition of the insurance proceeds is irrelevant. There was no evidence challenging the fact that Randy had designated his ex-wife as the beneficiary under the policy and that as of his death she was still the designated beneficiary. Appellant’s second point of error is overruled.

The judgment is affirmed.