author: REYNOLDS, Chief Justice.

text:
    Joe Douglas DUNN, Appellant, v. The STATE of Texas, Appellee.
    No. 07-84-0085-CR.
    Court of Appeals of Texas, Amarillo.
    Oct. 26, 1984.
    Rehearing Denied Nov. 19, 1984.
    John W. Warner, Warner & Finney, Pam-pa, for appellant.
    Robert D. McPherson, County Atty., Pampa, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   REYNOLDS, Chief Justice.

This appeal presents the question whether a defendant, who has paid the fee for a transcription of the court reporter’s notes included in the record on a successful appeal from his conviction, is entitled, after dismissal of the remanded cause by the trial court, to have the amount paid taxed to the county or to the State upon a motion to retax costs. Answering the question in the negative, we affirm the trial court’s denial of the motion to retax costs filed in that court and overrule the similar motion filed in this Court.

A Gray County jury found that appellant Joe Douglas Dunn was guilty of four of the eleven counts of felony theft charged against him by an indictment, and assessed his punishment at confinement for seven years. Upon his appeal, we concluded that three of the four counts of which he was convicted formed no part of the indictment, dismissed the three counts and, because of fundamental error in the court’s charge on punishment, reversed the judgment and remanded the cause for a new trial on the remaining count. Dunn v. State, 646 S.W.2d 576 (Tex.App. — Amarillo 1983, no pet’n). Thereafter and upon the State’s motion, the trial court dismissed the cause.

Appellant then moved the trial court to retax costs, alleging that the $3,130.25 he paid the court reporter for the transcription included in the record on appeal is a cost to be borne by Gray County. Appellant based his entitlement to have the costs retaxed on the statute reading thusly:

Whenever costs have been erroneously taxed against a defendant, he may have the error corrected, and the costs properly taxed, upon filing a written motion for that purpose in the court in which the case is then or was last pending. Such motion may be made at any time within one year after the final disposition of the case in which the costs were taxed, and not afterward. Notice of such motion shall be given to each party to be affected thereby, as in the case of a similar motion in a civil action.

Tex.Code Crim.Proe.Ann. art. 1016 (Vernon 1979). After a hearing, the trial court denied the motion, and this appeal ensued, during the pendency of which appellant similarly moved this Court to retax the amount he paid either to Gray County or to the State of Texas. Parenthetically, we note that, although it is not material to our decision, the fee appellant paid to the court reporter for the transcription was not taxed as costs either in the trial court or by this Court.

The appellate records in this Court do not show, and appellant does not assert, that he was indigent at the time of the prior appeal. Since he desired a transcription of the court reporter’s notes to be included in the record on the prior appeal, he was responsible, pursuant to a statute, for obtaining the transcription. Tex.Code Crim.Proe.Ann. art. 40.09(5) (Vernon Supp. 1984). To obtain the transcription, he also was responsible to pay the court reporter a fee for it. Quarles v. State, 385 S.W.2d 395, 396-97 (Tex.Cr.App.1964), cert, denied 382 U.S. 829, 86 S.Ct. 65, 15 L.Ed.2d 73 (1965).

The matter of costs in criminal cases is purely statutory. Article 1016, supra, is one of a series of statutory enactments specifying the amount of costs, their imposition, and the time for their payment. See Tex.Code Crim.Proe.Ann. arts. 1012-1036 (Vernon 1979 & Supp.1984). None of these statutes, nor any other legal pronouncement to our knowledge, provides that the cost of the court reporter’s transcription, which the law imposes on the nonindigent defendant if he desires to obtain it, becomes, upon the termination of the cause favorable to him, either an erroneous taxing of costs against him or a cost to be taxed to a county or to the State. Consequently, we hold that neither the trial court nor this Court is authorized by article 1016, supra, to obligate a county or the State to bear the cost of the transcription of the court reporter’s notes incurred or paid by a nonindigent defendant.

Accordingly, the motion to retax costs filed in this Court is overruled, and the judgment of the trial court denying the motion to retax costs filed in that court is affirmed.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    William J. MADER and Robert Mader, Appellants, v. AETNA CASUALTY AND SURETY COMPANY and Forrest Allen Insurance Agency, Appellees.
    No. 13-83-513-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 1, 1984.
    Rehearing Denied Dec. 6, 1984.

      John A. Sixta, Jr., Corpus Christi, for appellants.
    Ronald B. Brin, Brin & Brin, Darrell L. Barger, Hunt, Hermansen, McKibben & Barger, Corpus Christi, for appellees.
    Before NYE, C.J., and GONZALEZ and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is a deceptive trade practices action filed in connection with the purchase of an automobile insurance policy.

William J. Mader and his son, Robert Mader, brought suit against Aetna Casualty and Surety Company (Aetna) and Forrest Allen Insurance Agency (Forrest Allen), alleging that William Mader had requested from Forrest Allen a policy for automobile insurance which would give him the maximum coverage allowed under Texas law. He claimed that his son was a resident of the household and was covered by the policy. After Mader’s adult son was involved in an automobile accident in California, Mader attempted to recover the cost of his son’s medical treatment. It was then that he discovered that the maximum amount of his policy for uninsured/under-insured coverage was $10,000/20,000. He asserted that he had requested the maximum coverage under Texas law but instead received minimum coverage. Aetna tendered a check to Mader for $10,000.00, but Mader refused to accept it and sued the appellees for violation of the Deceptive Trade Practices Act. The defendants countered with a claim for attorney’s fees, contending that the Maders’ suit was groundless and was brought in bad faith or for the purposes of harrassment.

The case was tried before a jury. In answer to special issues, the jury found that there had been no misrepresentation made by Forrest Allen regarding the insurance policy. They also found that Robert Mader was not a resident of the household of William Mader. Plaintiffs/appellants do not contest on appeal the jury’s findings against them on their deceptive trade practices claim.

Additionally, the jury found that both of the Maders had brought their actions in bad faith or for purposes of harrassment. The main points of error they raise here concern the defendant/appellees’ counterclaim for attorney’s fees based upon the jury finding that the Maders brought that claim in bad faith and for the purpose of harassment.

First, they claim that the trial court erred in submitting an instruction which informed the jury that “as a matter of law Robert Mader was not a consumer within the meaning of the Texas Deceptive Trade Practices Act. ” (Emphasis supplied.) Appellant contends that this instruction (1) constitutes a comment on the evidence; (2) is a general instruction in that the jury was not instructed to consider that statement only with regard to certain special issues; (3) the instruction implied that the District Court agreed with the appellees’ case; and (4) it constitutes an incorrect statement of law in that it implies that lack of legal status as a consumer is necessarily an indication of bad faith or that a case was brought for purposes of harassment. Appellants’ only objection to the submission of this instruction at trial was that it was an impermissible comment on the weight of the evidence. The instruction was submitted in conjunction with both appellees’ counterclaims that the appellants’ suit was brought in bad faith or for purposes of harassment. Appellants’ also argue that the trial court erred in failing to direct the jury to consider the instruction with regard to the issues as to Robert Mader only. This objection, however, was not raised at the trial court level and is waived. TEX.R. CIV.P. 274; Davis v. Campbell, 572 S.W.2d 660 (Tex.1978).

TEX.R.CIV.P. 277 states that “the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict and in such instances the charge shall not be subject to objection that it is a general charge.” Instructions are permitted when they are necessary to aid in explaining some matter to the jury. Board of Regents of North Texas State University v. Denton Construction Co., 652 S.W.2d 588 (Tex.App.—Ft. Worth, 1983, writ ref’d n.r.e.). Although a trial court may not

comment on the weight of the evidence, it may incidentally comment where the comment is necessary or proper as part of an explanatory instruction or definition. TEX. R.CIV.P. 277. Trial courts generally have considerable discretion in deciding what instructions are necessary and proper. Johnson v. Whitehurst, 652 S.W.2d 441 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).

In the case at bar, the trial court’s instruction was given in connection with the bad faith and harassment issue that was submitted as to the son, Robert Mader. The trial court, in effect, informed the jury on a finding which it had made as a matter of law. This was error. See: Board of Regents of North Texas State University v. Denton Construction Co. Appellees argue that the instruction aided the jury in answering the issues which accompanied them. We disagree with this argument. This instruction informed the jury to the effect that the trial court looked with favor on the appellees’ cases, at least in part. By informing the jury that it found that Robert Mader was not a consumer, we believe that the instruction strongly suggested to the jury that they should answer the accompanying issue accordingly. Robert Mader could not recover on his Deceptive Trade Practices claim unless he was found to be a consumer as defined by the Act. The instruction of the court that Robert Mader was not a consumer was unnecessary for the jury to consider in their deliberations concerning whether Robert Mader had brought his suit in bad faith or for purposes of harassment. We can see no useful purpose for this instruction other than to steer the jury toward an affirmative finding on those issues. As such, we find that the instruction was an impermissible comment on the evidence; it announced an opinion on behalf of the trial court as to the ultimate facts that were to be inquired about. The instruction was unnecessary to the issue as evidenced by the fact that the jury was not similarly instructed that William Mader was a consumer as a matter of law with regard to the bad faith and

harassment issues submitted as to him. Appellants’ first point of error is sustained.

In appellants’ second and third points of error, they assert that the trial court erred in submitting special issues which inquired whether they had brought their action against the defendants in bad faith and/or for purposes of harassment because there was no evidence to support the submission of these special issues. A trial court must submit a relevant requested special issue if there is any evidence to support it. Vela v. Ebert’s Mobile Homes, Inc., 630 S.W.2d 434 (Tex.App. — Corpus Christi 1982, writ ref’d n.r.e.); Trevino v. Trevino, 555 S.W.2d 792 (Tex.Civ.App.— Corpus Christi 1977, no writ).

As amended in 1979, § 17.50(c) provides:

On a finding by the court that an action under this section was groundless and brought in bad faith, or brought for purposes of harassment, the court shall award to the defendant reasonable and necessary attorney’s fees and court costs.

The testimony of appellants themselves is conflicting. William Mader testified that he requested the agent to write him a policy for maximum coverage. He also testified that he never had a conversation about uninsured motorist coverage in particular. There was evidence admitted that on the application for insurance Mader had listed himself, his wife and his son, Richard, as living at home, but his son, Robert, the other appellant herein, was not listed. William Mader also testified that he did not read his policy or application. At one point, he acknowledged that he thought his coverage was $10,000/20,000 because he believed ten/twenty was the maximum. Robert, the other appellant herein, was not listed on the application as residing at Mad-er’s home. Robert Mader also testified that he resided with his parents in Corpus Christi and, although working in California for his father’s telephone business, he intended to return to Corpus Christi. There was testimony, however, elicited that Robert Mader had obtained a California driver’s license and had been in California for a period of time preceding the accident. Robert Mader testified that he had a Delaware license which he surrendered in favor of the California license, but had never had a Texas driver’s license. Robert Mader was not the purchaser of a policy or in any way involved in the transaction involving the purchase of the insurance policy.

Appellants’ points of error are that there was no evidence to submit the bad faith issues to the jury. We find that the above testimony was sufficient evidence to support the submission of the bad faith and harassment issues to the jury. Appellants’ second and third points of error are overruled.

In their fourth point of error, appellants claim that the trial court erred in excluding evidence that William Mader promised to pay the medical bills of Robert Mader on the ground that the evidence offered violated the Statute of Frauds. Appellants attempted to introduce testimony that William Mader was responsible for paying the medical bills of his son, Robert Mader.

To obtain reversal of the judgment, appellant had the burden in this case to show that rejection of the testimony he attempted to offer was error reasonably calculated to cause and probably did cause rendition of an improper judgment. TEX. R.CIV.P. 434. It is elemental that an assignment of error relating to the exclusion of evidence must be preserved by a proper bill of exceptions. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984). Absent a proper bill of exceptions, we cannot say that the exclusion of William Mader’s testimony as to the written agreement was error. Appellants’ fourth point of error is overruled.

In appellant’s fifth and sixth points of error, they claim that the trial court erred in ruling that their claims against appellees were groundless as a matter of law. The court, in determining whether an action is groundless, makes its decision on undisputed fact issues, law issues or jury findings. O’Shea v. Interna tional Business Machines Corp., 578 S.W.2d 844 (Tex.Civ.App. — Houston [1st Dist.] 1979, writ ref’d n.r.e.) (emphasis ours). In the case at bar, we find that there was ample evidence to support the jury’s findings on bad faith or harassment. The trial court’s conclusion that the suit was groundless based upon these findings is also supported. Appellants’ fifth and sixth points of error are also overruled.

In appellants’ seventh point of error, they claim that the trial court erred in finding that Robert Mader was not a consumer as a matter of law. We have considered this point, and it is overruled.

The judgment of the trial court reflects that appellants Robert, as well as his father, William J. Mader, were held by the trial court to be jointly and severally liable for the appellees’ attorneys’ fees. This was error as to Robert Mader because of the instruction given by the trial court. When it appears to this Court that the error affects a part only of the matter in controversy, and that such part is clearly severable without unfairness to the parties, the judgment shall only be reversible and a new trial ordered as to that part affected by such error. TEX.R.CIV.P. 434.

Accordingly, the judgment of the trial court is reversed and the cause as to Robert Mader is remanded for a new trial to determine the issue vel non of bad faith or for purposes of harassment. In all other respects, the judgment of the trial court is affirmed.

GONZALEZ, J., not participating.


author: AKIN, Justice.

text:
    P. Stephen FUQUA, Appellant, v. Warren W. TAYLOR, et al., Appellee.
    No. 05-83-01359-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 5, 1984.
    Rehearing Denied Jan. 14, 1985.

      Paul W. Wisdom, Jr., Mesquite, for appellant.
    Thomas K. Boone, Dalton, Moore, Forde, Joiner & Stollenwerck, Dallas, for appellee.
    Before AKIN, SPARLING and WHIT-HAM, JJ.
   AKIN, Justice.

This is an appeal from the trial court’s imposition of a constructive trust on income received by appellant from an overriding royalty interest (the “Sharpe lease”) obtained by him. The first issue presented is whether, where the underlying facts are undisputed, determination of the existence, and breach, of a fiduciary duty are questions of law exclusively within the province of the court. We hold that they are. A second question is whether the trial court rendered judgment in the correct amount. We hold that it did not and modify the judgment as indicated infra. A third question is whether the trial court properly awarded judgment to persons who were not parties to the suit. We hold that it was error for the court to award judgment to such persons and, therefore, we modify the judgment to include only those persons who were parties to the suit. Further, we remand this cause for proceedings to determine the proper amount of recovery to be awarded each appellee. We address several additional contentions of appellant in a separate, unpublished opinion accompanying this opinion. The judgment of the trial court is otherwise affirmed, as modified.

Appellant is a geologist who specializes in re-entering dry oil and gas wells in order to make them productive. Two such re-entry prospects, located in Parker County, were referred to as the Sneed and the O’Kelley. Appellant secured leases on four tracts (the Sneed, Sharpe, Malone, and Long leases), totaling approximately 700 acres, surrounding the Sneed well and pooled them in order to comply with Railroad Commission regulations that required 640 acres for a gas unit. Appellant then attempted to obtain financing for the re-entry of the Sneed as a gas well. Frank Haughton, an independent petroleum land-man who was sub-leasing office space from appellant, helped line up investors to supply the necessary funds. The investors invested various sums of money in exchange for a proportionate share of the working interest in the leases. As operator of the venture, appellant received a 16.75% share, for which he paid nothing. Each of the investors signed a letter agreement with appellant. This agreement, which included the Sharpe lease, provided, inter alia, that “[i]f at a later date it is deemed advisable to drill a second well you will be given the option to participate....”

Re-entry of the Sneed was commenced in October 1979. The well was completed in December 1979, and designated to the Railroad Commission as an oil, rather than a gas, well, but was not an economically feasible operation. Consequently, all leases except the Sneed operation were permitted to expire.

In November 1979, during the re-entry of the Sneed well, appellant had obtained a commitment from Texana, Inc. for the acquisition of leases surrounding the O’Kelley well, which was approximately two miles northeast of the Sneed well. Appellant reacquired the Sharpe lease in February 1980 and subsequently assigned that lease to Texana, reserving for himself a 12.5% overriding royalty (reduced to 9.62% by subsequent assignments). Appellant acquired the O’Kelley lease in March 1980 and shortly thereafter assigned it to Texa-na, reserving a 6.25% override. The O’Kelley lease had not been part of the Sneed block. Several other leases were acquired and, together with the Sharpe and O’Kelley leases, formed the O’Kelley block. The Sharpe and O’Kelley wells became producers and. appellant received income therefrom in accordance with his override. Ap-pellees, working interest owners of a thirty-one percent interest in the Sneed venture, brought this action to impose, for their benefit, a constructive trust upon that income.

First, appellant contends that the trial court erred in ruling as a matter of law that he had a fiduciary duty to inform appellees of the opportunity to reacquire the Sharpe lease. Additionally, appellant asserts that the court’s denial of his motion for judgment non obstante veredicto as to the Sharpe lease was error. By cross-point, appellees contend, in effect, that the court erred in ruling as a matter of law that appellant did not have a fiduciary duty to inform appellees of the opportunity to acquire the O’Kelley lease. Specifically, appellees complain that the trial court erred in disregarding the jury’s findings that appellant had and breached such a duty and in refusing to impose a constructive trust on appellant’s income from the O’Kelley lease. We address these grounds together.

The question of whether a fiduciary duty exists is a question of law for the court’s determination. See Rankin v. Naftalis, 557 S.W.2d 940 (Tex.1977); Course-view, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197 (1958); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951); Warner v. Winn, 145 Tex. 302, 197 S.W.2d 338 (1946); Kinzbach Tool Co., Inc. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509 (1942); and Meinhard v. Salmon, 249 N.Y. 458,164 N.E. 545 (1928). We note that although the existence of facts which give rise to a fidiciary duty are questions for the factfinder’s determination, MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944), the pertinent facts in the instant case are undisputed. Where the facts are undisputed, the question of whether a fiduciary duty has been breached is also a question of law to be determined by the court. Thus, the trial court improperly submitted issues to the jury inquiring whether appellant (1) breached his fiduciary duty to appellees as- to the Sharpe reacquisition opportunity; (2) had a fiduciary duty to inform appellees of the O’Kelley acquisition opportunity; and (3) breached his fiduciary duty as to the O’Kelley. Accordingly, we hold that the trial court did not err in disregarding the jury’s findings that appellant had and breached a fiduciary duty as to the O’Kelley lease.

The Supreme Court of Texas has recognized that the relationship between appellant and appellees, that of joint ven-turers for the development of a particular oil and gas lease, is fiduciary in character. Rankin v. Naftalis, 557 S.W.2d 940 (Tex. 1977). Fiduciary duties, however, extend only to dealings within the scope of that relationship. Id. In the instant case, the signed letter agreement established the relationship between the parties. That agreement, which provided that the investors would be given an option to participate if it was later deemed advisable to drill a second well, included the Sharpe lease but not the O’Kelley. Thus, the Sharpe lease was within the scope of the fiduciary relationship between appellant and appellees, but the O’Kelley lease was not. We conclude, therefore, that appellant had a fiduciary duty to inform appellees of the opportunity to reacquire the Sharpe lease, but that appellant had no such duty with respect to the acquisition of the O’Kelley lease.

Appellees maintain, however, that appellant’s fiduciary duty extended to the O’Kelley lease because: (1) the O’Kelley lease is in proximity with, though not adjacent to, the Sneed; and (2) appellant stated on a “Progress Report” to the Sneed working interest owners, dated February 2, 1981, that the O’Kelley well “was and is a candidate for re-entry.” We do not agree. The O’Kelley lease was outside the scope of the fiduciary relationship established by their letter agreement. Appellees have not cited, nor have we discovered, any authority holding that mere proximity is sufficient to extend a fiduciary duty from property within the scope of a fiduciary relationship to other property. Nor do we view appellant’s unilateral statement as extending his fiduciary duty to appellees to the O’Kelley lease.

Accordingly, we hold that the trial court correctly ruled as a matter of law that appellant had a fiduciary duty to inform appellees of the Sharpe reacquisition opportunity. The evidence showed that appellant did not apprise appellees of the opportunity to reacquire the Sharpe lease; therefore, he breached his fiduciary duty as a matter of law. The breach of such a fiduciary duty, which (as here) renders the acquisition or retention of property by one person against others unconscionable, supports the imposition of a constructive trust. Palmer v. Fuqua, 641 F.2d 1146 (5th Cir. 1981); See Rankin v. Naftalis, 557 S.W.2d at 944; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951).

Next, appellant contends that the trial court erred in awarding judgment to persons who were not parties to the suit. The judgment orders all past and future income attributable to appellant’s interest in the Sharpe lease to be paid to a named trustee for the benefit of all Sneed working interest owners, regardless of whether they were parties to this action. We agree with appellant’s contention. Judgment may not be granted in favor of a party not named in the suit as a plaintiff or a defendant. Texaco, Inc. v. Wolfe, 601 S.W.2d 737 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). Accordingly, we modify the judgment to include only those working interest owners who were parties to this suit. See Hardware Mutual Casualty v. Schantz, 186 F.2d 868 (5th Cir.1951).

We do not hold, however, that ap-pellees may recover all of the income from appellant’s interest in the Sharpe lease. This action to impose a constructive trust is one in equity, and we conclude that it would violate equitable principles to allow appellees, who owned but thirty-one percent of the working interest, to recover one hundred percent of the trust income. Accordingly, we remand this cause to the trial court for a determination of the amount of each individual appellee’s recovery, to be calculated according to the percentage of the entire working interest in the Sneed venture owned by each appellee. See Meadows v. Bierschwale, 516 S.W.2d 125 (Tex.1974); Perez v. Hernandez, 658 S.W.2d 697 (Tex.App. — Corpus Christi 1983, no writ). Our decision serves equity in that the income not distributed to appel-lees will be available for recovery by other working interest owners who are not parties to this cause, but who may later assert a claim.

Next, appellant contends that the trial court erred as to the amount of the judgment. We agree. The uncontroverted evidence showed that, as of the time of trial, appellant had already received income of $14,602.23 and was entitled to, but had not yet received, income of $3,260.46 from his override on the Sharpe lease. The trial court, however, awarded judgment in the amount of $17,862.69 and ordered all future income from appellant’s interest in the Sharpe lease to be held in constructive trust. Appellant argues that this judgment permits, in effect, a double recovery of the $3,260.46 that was included in the judgment amount of $17,862.69 despite the fact that it had not been received by appellant as of the time of trial. Appellees do not dispute this argument. We agree that the trial court’s judgment should not have included the $3,260.46. Likewise, the trial judge should have limited appellees’ recovery to only thirty-one percent of the remaining $14,602.23. Consequently, we modify the judgment accordingly. See Soto v. Doehne, 625 S.W.2d 60 (Tex.App.— San Antonio 1981, no writ); TEX.R.CIV.P. 435.

We remand this cause to the trial court for further proceedings, consistent with this opinion, to determine the proper amount of recovery to be awarded each appellee. The judgment of the trial court is otherwise affirmed, as modified herein.

      . Our holding is not affected by the fact that appellant reacquired the Sharpe lease shortly after its expiration. See Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960).


author: CORNELIUS, Chief Justice.

text:
    The WESTERN FIRE INSURANCE COMPANY, Appellant, v. James PITTS, Appellee.
    No. 9241.
    Court of Appeals of Texas, Texarkana.
    Nov. 6, 1984.
    Rehearing Denied Dec. 18, 1984.

      Hardy Moore, Paris, for appellant.
    Tom D. Wells, III, Wells & Wells, Paris, for appellee.
   CORNELIUS, Chief Justice.

Western Fire Insurance Company appeals from a summary judgment entered against it in favor of James Pitts in his action upon a fire policy. Western argues that the court erred in granting Pitts’ summary judgment, and also in failing to grant the summary judgment sought by Western. Because the undisputed evidence establishes a change of ownership sufficient to void the policy under its “change of ownership” condition, we reverse and render judgment that Pitts take nothing.

James Pitts married Joan Stribling in 1961. While married, Pitts and his wife purchased a home with community funds, and borrowed $5,500.00 as a community debt to finance the purchase of the home. Upon purchasing the home, James Pitts took out a fire insurance policy with Western Fire Insurance Company through its agents Mackey & Pierson. James and Joan Pitts were divorced in 1977. As a term of the divorce decree, the house they had purchased was awarded to Joan. In 1979, James Pitts complied with the property settlement, and deeded his interest in the house and property to Joan by warranty deed. Neither Mackey & Pierson nor Western ever learned of the divorce or the deeding of the property to Joan by James Pitts.

The insurance policy issued to James Pitts contained a clause relieving the insurance company from liability “following a change in ownership of the insured property.” Such a condition is valid in Texas and will be strictly enforced. Lowe v. Michigan Fire & Marine Ins. Co., 236 S.W.2d 168 (Tex.Civ.App. — Beaumont 1950, writ ref’d). See also, Home Ins. Co. v. Brownlee, 480 S.W.2d 491 (Tex.Civ.App.— Eastland 1972, no writ); Bucher v. Employers Cas. Co., 409 S.W.2d 583 (Tex.Civ. App. — Fort Worth 1966, no writ); and Rio Grande Nat’l Life Ins. Co. v. Hardware Dealers Mut. Fire Ins. Co., 209 S.W.2d 654 (Tex.Civ.App. — Amarillo 1948, writ ref’d n.r.e.). The bases for such a condition are the purpose of fire insurance, which is to indemnify against loss, and the public policy objective to eliminate incentives to arson.

Pitts admits that the warranty deed of his interest in the property to his wife was a change of ownership, but argues that the change was not a breach of the policy provision because it was not of a nature calculated to increase the motive to burn the property or to diminish the motive to guard the property against fire.

The proper test for determining whether there has been a change of ownership sufficient to void the policy on such facts was stated in Walters v. Century Lloyds Ins. Co., 154 Tex. 30, 273 S.W.2d 66 (1954), quoting from New Orleans Ins. Co. v. Gordon, 68 Tex. 144, 3 S.W. 718 (1887):

... If there is no change in the fact of title, but only in the evidence of it, and if this latter is merely nominal, and not of a nature calculated to increase the motive to burn, or diminish the motive ... to guard the property from loss by fire, the policy is not violated. 273 S.W.2d 68. (Emphasis supplied).

Thus, as in Walters, where the owner has transferred the evidence of title but retains the beneficial title, possession, or some other interest, the change will not void the policy unless there is a showing of an increased motive to burn or diminished incentive to guard the property. Insurance Co. of N. Am. v. O’Bannon, 109 Tex. 281, 206 S.W. 814 (1918). On the other hand, a change by which the owner has parted with both the beneficial and legal title as well as possession, is of such a nature as to diminish the motive and the opportunity to guard the property against fire, and relieves the insurer from liability pursuant to the policy provision. Lowe v. Michigan Fire & Marine Ins. Co., supra.

Here Pitts conveyed his entire interest in the insured property together with his pos-sessory rights. There was thus a sufficient change of ownership to void the policy under all of the authorities stated.

The judgment is reversed and judgment is here rendered that James Pitts take nothing.

      . Cases such as Ohio Cas. Ins. Co. v. Torres, 157 Tex. 189, 300 S.W.2d 947 (1957) and Duren v. U.S. Fire Ins. Co., 579 S.W.2d 32 (Tex.Civ.App.— Tyler 1979, no writ) are not in point because while involving a change of ownership provision in an insurance policy, they were suits by plaintiffs who were not named insureds, but were strangers to the insurance contracts. Neither is Mercury Fire Ins. Co. v. Dunaway, 74 S.W.2d 418 (Tex.Civ.App. — Waco 1934, writ refd) in point. There the conveyance of an interest in the property was to rather than from the named insured.


author: SEERDEN, Justice.

text:
    In re The ESTATE of Josephine Eva CAPLES. Dr. Steven A. MARASOVICH, Appellant, v. O.C. CAPLES, Appellee.
    No. 13-83-182-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 8, 1984.
    Rehearing Denied Jan. 10, 1985.

      Preston Henrichson, Edinburg, Ricardo G. Cedillo, Thomas Crofts, Groce, Locke & Hebdon, San Antonio, for appellant.
    John Lewis, Jones, Lewis & Pettitt, McAllen, for appellee.
    Before NYE, C.J., and SEERDEN and GONZALEZ, JJ.
   OPINION

SEERDEN, Justice.

This is a will contest. The deceased, Josephine Eva Capíes, died without children on December 14, 1980. Her heirs at law included her husband, O.C. Capíes, ap-pellee herein, Steve Marasovich, a brother, appellant herein, as well as another brother and three sisters.

In the trial court, appellant offered for probate a copy of a will of the deceased, the original of which had been dated July 26, 1976. Appellant alleged that the original of the will was lost. Appellee contested the application to probate the “lost” will and requested that he be appointed administrator of the estate.

Trial was to a jury, and, at the conclusion of the presentation of the case for the proponent of the will, a motion for instructed verdict was granted and the trial court entered judgment that the deceased died intestate. It is from this judgment that appellant brings this appeal.

In his second point of error, appellant contends that the trial court erred in directing a verdict in favor of appellee at the close of appellant’s case. In considering this issue, we review the evidence in its most favorable light in support of appellant’s position, disregarding all contrary evidence and inferences. Henderson v. Travelers Insurance Company, 544 S.W.2d 649 (Tex.1976).

If believed by the jury, the trial evidence was sufficient to demonstrate that the deceased had an excellent, loving relationship with her siblings and their families, but a very poor relationship, especially with regard to financial matters, with her husband, the appellee; that the deceased had made the will in question; that she knew the consequences of having no will; would not have been inclined to revoke her will or to die intestate; that she intended to provide for her niece and nephew upon her death; that she kept her will at her and appellee’s home; that she had stated to her lawyer shortly before her last illness that she had the will.

In addition, there was evidence that, when appellee learned from the deceased’s attorney that he was to receive only three hundred dollars a month under her will, he stated to the attorney that he was not sure whether he could live on that amount of money and took a copy of the will to consult another lawyer. Other testimony showed that the deceased kept her important papers in her house; several witnesses testified, and appellee conceded, that much of the home was in disarray as a result of appellee’s search for a will through the deceased’s personal items. Finally, the jury was entitled to infer that appellee’s intestate share was far more valuable than three hundred dollars per month.

We hold that the evidence created a fact issue as to whether the original of the deceased’s will was lost or destroyed by appellee and that these issues should have been submitted to the jury for resolution.

We recognize the rule that, when a will in the testator’s possession cannot be produced after his death, the proponent of the will must assume the burden of proving that the testator did not destroy the will with an intention to revoke it. O’Brien v. Stanzel, 603 S.W.2d 826 (Tex.1980); Mingo v. Mingo, 507 S.W.2d 310 (Tex.Civ.App.— San Antonio 1974, writ ref’d n.r.e.). The “presumption that [the will] was revoked by the testator stands in the place of positive proof to that effect and he who seeks to establish the will assumes the burden of overcoming the presumption by producing facts and circumstances contrary thereto or that it was fraudulently destroyed by some other person.” [Emphasis added]. Mingo, 507 at 312; Bailey v. Bailey, 171 S.W.2d 162 (Tex.Civ.App. — Amarillo 1943, no writ). The presumption that the testator has destroyed his will with the intent to revoke it is not conclusive and thus may be rebutted; “[i]f rebuttal testimony is offered then a question of fact is presented for a court of jury.” Cable v. Estate of Cable, 480 S.W.2d 820 (Tex.Civ.App. — Fort Worth 1972, no writ); Sparkman v. Estate of Massey, 297 S.W.2d 308 (Tex.Civ.App.— Dallas 1956, writ ref d n.r.e.). Thus, when there is evidence both that the will existed and that it was surreptitiously withdrawn from the possession of the testator, the presumption of revocation may be repelled, and it is not permissible for the trial judge to peremptorily instruct the jury against such evidence. McClusky v. Owens, 255 S.W.2d 939 (Tex.Civ.App. — Dallas 1953, writ ref d n.r.e.); see also Davis v. Roach, 138 S.W.2d 268 (Tex.Civ.App. — Austin 1940, writ dism’d, judgment corr.).

In the case before us, the evidence was sufficient to create a fact issue for the jury. Appellant’s second point of error is sustained. We need not consider appellant’s remaining points of error because the issues there presented are not controlling. TEX.R.CIV.P.ANN. 451 (Vernon Supp.1984). In addition, it is not anticipated that the matters raised by appellant’s other points of error will arise at a re-trial of this case. The judgment of the trial court is REVERSED and the case is REMANDED for a new trial.

GONZALEZ, J., not participating.


text:
    HST GATHERING COMPANY, Appellant, v. MOTOR SERVICE, INC., Appellee.
    No. 13-84-082-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 15, 1984.
    Rehearing Denied Dec. 20, 1984.

      Jerry N. Dennard, San Antonio, for appellant.
    Charles L. Williams, Kingsville, for ap-pellee.
    Before NYE, C.J., and SEERDEN and GONZALEZ, JJ.
   OPINION

SEERDEN, Justice.

This is an appeal from a judgment rendered against appellant in a non-jury trial where it, as defendant in the trial court, had filed an answer but failed to appear, either in person or by its attorney.

A motion for new trial as well as an amended motion were timely filed, and, after a hearing on the amended motion, the trial court overruled same. No requests for findings of fact or conclusions of law were made, and none were filed. Under these circumstances, it is implied that the trial court made all necessary findings to support its judgment, and the trial court’s judgment will be affirmed if there is evidence of probative force to support it on any theory authorized by law. Cameron v. MacDonell, 659 S.W.2d 911 (Tex.App.— Corpus Christi 1983, no writ); Henderson-Bridges, Inc. v. White, 647 S.W.2d 375 (Tex.App. — Corpus Christi 1983, no writ).

In considering whether a new trial should be granted in this type of situation, the same rules apply for motions for new trials which seek to set aside default judgments entered on failure of a defendant to file an answer and those entered on failure to appear for trial. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); Stone Resources, Inc. v. Barnett, 661 S.W.2d 148 (Tex.App. —Houston [1st Dist.] 1983, no writ).

The rule is well settled that a mov-ant is entitled to have a default judgment against him vacated and a new trial ordered when (1) he establishes that the failure to attend trial was not intentional or due to conscious indifference on his part, but was due to accident or mistake; (2) he sets up a meritorious defense; and (3) he shows that the granting of a new trial will occasion no delay or otherwise injure the non-movant. Ivy v. Carrell, supra; Craddock v. Sunshine Bits Lines, 133 S.W.2d 124 (Tex.1939); Spencer v. Affleck & Co., 620 S.W.2d 831 (Tex.Civ.App. — Houston [14th Dist.] 1981, writ ref d n.r.e.).

Appellant, in his amended motion for new trial and in the evidence presented at the hearing thereon, showed that the failure to appear was the result of a mistake and that the notice had been sent to the attorney of record who, at the time the notice was received in his office was ill, had advised his client to seek other counsel and whose office staff was unaware that the nature of the “hearing” referred to in such notice was to be the trial on the merits. We hold the failure of the appellant’s counsel to appear was not deliberate or the result of conscious indifference.

In testimony at the hearing on the motion for new trial, appellant presented evidence that was sufficient to establish a prima facie case of a meritorious defense to some, if not all, of the monies appellee claimed were due it.

With respect to the third condition for granting a new trial, that is, that the granting of the new trial will occasion no delay or otherwise injure the non-movant, appellant, both in his amended motion for new trial and at the evidentiary hearing, announced that it was ready to go to trial immediately and offered to pay reasonable attorney’s fees to appellee in connection with their appearance and the taking of the default judgment. While it would have been more clear if appellant would have couched its offer so as to include all reasonable expenses, not just attorney’s fees, we hold that the offer was broad enough to include all reasonable expenses.

While we recognize that the question of whether to set aside a default judgment is addressed to the sound discretion of the trial court and will be overturned only upon a showing of abuse of discretion, Loewer v. Flanagan Farms, 661 S.W.2d 751 (Tex.App. — San Antonio 1983, no writ); Zonker v. Sullivan, 650 S.W.2d 189 (Tex. App. — El Paso 1983, writ ref’d n.r.e.), such discretion is not unbridled; and, when the three conditions set forth above have been met, the trial court should grant a new trial. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex.1939); Mitchell v. Webb, 591 S.W.2d 547 (Tex.Civ.App. — Fort Worth 1979, no writ); Jack Adams Aircraft Sales, Inc. v. Hurley, 569 S.W.2d 599 (Tex.Civ.App. — Texarkana 1978, writ ref’d n.r.e.).

We hold that appellant met all the conditions required, and it was error for the trial court to refuse to grant its motion for new trial, conditioned on its payment of reasonable expenses in connection with ap-pellee’s obtaining the judgment. Appellant’s first point of error is sustained.

By its second and third points of error, appellant complains of the sufficiency of the evidence to support portions of the sums awarded to appellee. Though appellant has made out a prima facie case for a defense relating to these issues in its motion for new trial, we find that at the hearing on the default judgment, which was conducted on November 17, 1983, ap-pellee submitted evidence sufficient for the trial court to make the awards of which appellant now complains. Appellant’s second and third points of error are overruled.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

GONZALEZ, J., not participating.


text:
    James SLAUGHTER, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-157-CR.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 15, 1984.
    Donald Dailey, Corpus Christi, for appellant.
    Grant Jones, Dist. Atty., Corpus Christi, for appellee.
    Before NYE, C.J., and KENNEDY and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a conviction for aggravated robbery. Appellant pled guilty pursuant to a judicial confession and was sentenced to forty years in the Texas Department of Corrections.

In appellant’s sole ground of error, he asserts that the trial court erred in denying his motion to dismiss for violation of the Speedy Trial Act. This is the type of ground of error that can be raised on appeal in such cases. Martin v. State, 652 S.W.2d 777 (Tex.Crim.App.1988).

Appellant was arrested on August 25, 1983 in San Patricio County for aggravated kidnapping. On the same day, he committed aggravated robbery in Nueces County and was later indicted on that charge. Appellant was hospitalized on that date at Memorial Medical Center in Nueces County until September 18, 1983. Upon leaving the hospital, appellant was transferred to San Patricio County Jail, where he was confined for the next 124 days. He was indicted by a Nueces County grand jury on September 16, 1983 (Day 22). On September 20, 1983, the State filed its written announcement of ready (Day 26) on the Nueces County indictment. On January 17, 1984 (Day 145), appellant pled guilty and was sentenced to forty-five years in the Texas Department of Corrections on the San Patricio indictment. On January 20, 1984 (Day 148), the application for Bench Warrant was filed, and appellant was returned to Nueces County to stand trial. On February 10, 1984, appellant was arraigned in Nueces County. The case was called for trial, and the State announced ready on February 17, 1984. On March 29, 1984, appellant pled guilty to aggravated robbery in Nueces County. The appellant contends that the State was not ready because the appellant was absent from Nuec-es County when the State filed its announcement of ready and during the subsequent 120 days. The State contends that they were ready at all times after their written announcement of ready; and, although appellant was not physically present in Nueces County, the circumstances of his detention were such that he could have, been returned to Nueces County when his arraignment date and trial date were set. We disagree with the State’s contention that they were ready at all times as contemplated by the Act. However, we find certain periods of time ex-cludable under the law.

TEX.CODE CRIM.PROC.ANN. article 32A.02 (Vernon Supp.1984) provides, in pertinent part:

Sec. 1. A Court shall grant a motion to set aside an indictment ... if the state is not ready for trial within:
(1) 120 days of the commencement of criminal action if the defendant is accused of a felony;
Sec. 2(a) Except as provided in Subsections (b) and (c) of this section, a criminal action commences for purposes of this article when an indictment ... or complaint against the defendant is filed in court.
Sec. 4. In computing the time by which the state must be ready for trial, the following periods shall be excluded:
(1) A reasonable period of delay resulting from other proceedings involving the defendant, including but not limited to proceedings for the determination of competence to stand trial, hearing on pretrial motions, appeals and trials on other charges;
(9) a period of delay resulting from detention of the defendant in another jurisdiction if the State is aware of the detention and exercises due diligence to obtain his presence for trial; ...

An announcement of ready by the State constitutes a prima facie showing that the State has complied with the requirements of the Speedy Trial Act. Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App.1982). This may be rebutted by a showing that appellant was absent during the time in which the State claimed to be ready. Newton v. State, 641 S.W.2d 530 (Tex.Crim.App.1982). The absence of the defendant is a circumstance that prevents the State from being ready as contemplated by the Speedy Trial Act. Newton v. State, 641 S.W.2d at 531. Once the prima facie showing of readiness has been rebutted, the State must prove that there were excludable periods of delay that would extend the initial time limitation. Phipps v. State, 630 S.W.2d at 947. The relevant excludable periods are contained in subsections (1) and (9) of section 4 of TEX.CODE CRIM.PROC.ANN. art. 32A.02. Section 4(1) of art. 32A.02 is couched in terms of reasonableness when looking at a period of delay, while § 4(9) requires the prosecutor to use due diligence to obtain the presence of the defendant for trial.

The determination of “reasonable delay” is made on a case by case basis. Parish v. State, 632 S.W.2d 200 (Tex.App. —Ft. Worth 1982, no p.d.r.); Turner v. State, 545 S.W.2d 133 (Tex.Crim.App.1976). To determine whether the delay was reasonable under the facts of this case, we consider such factors as: the proximity of San Patricio and Nueces Counties, the proximity of time in which the two offenses were committed, the ability of the prosecutor in Nueces County to obtain the accused for trial and the speed with which appellant was returned to Nueces County after he had been convicted in San Patricio County.

The record reflects that appellant was not brought to Nueces County until after the 120-day period had run. He was not tried in Nueces County until 217 days after his arrest. He was detained in another jurisdiction from September 19, 1983 until January 20, 1984, when he was bench warranted to Nueces County. A total of 124 days passed from the time appellant was returned to Nueces County from San Patricio County. Appellant committed two crimes in adjacent counties on the same day. The appellant was bench warranted back to Nueces County immediately upon his guilty plea in San Patricio County. The period of delay resulting from appellant awaiting trial in San Patricio County was, therefore, a reasonable period. As such, we exclude the period of detention of the appellant while in the jurisdiction of San Patricio County.. TEX.CODE CRIM.PROC. ANN. art. 32A.02 § 4(1) & (9) (Vernon Supp.1984).

Appellant’s ground of error is overruled, and the judgment of the trial court is affirmed.

      . The State conceded at the hearing to set aside the indictment for failure to comply with the Speedy Trial Act that the date on which time began to run under the Speedy Trial Act was August 25, 1983, the date of appellant’s arrest in San Patricio County.


author: T. GILBERT SHARPE, Justice, Retired.

text:
    GIBRALTAR SAVINGS ASSOCIATION, Appellant, v. Kenneth Wayne WATSON, et ux., Appellees.
    No. C14-84-147-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 1984.

      Kent J. Browning, John W. Berkel, Lapin, Totoz & Mayer, Houston, for appellant.
    Jimmy Williamson, Doherty & Williamson, P.C., Houston, for appellees.
    Before J. CURTISS BROWN, C.J., JU-NELL, J., and T. GILBERT SHARPE, J., Retired.
   OPINION

T. GILBERT SHARPE, Justice, Retired.

Appellant, Gibraltar Savings Association, plaintiff below, appeals from a take-nothing judgment rendered against it in the trial court.

This case has been before the court once previously and the take-nothing judgment rendered against appellant on that occasion was reversed and the case remanded for new trial. See Gibraltar Savings Association v. Watson, 624 S.W.2d 650 (Tex.App. —Houston [14th Dist.] 1981, no writ). We reverse the judgment in this second appeal and render it in favor of Gibraltar. The trial court should have sustained the contentions of appellant asserted under its points of error numbers one and two which in substance state that the charge did not include all of the elements of the affirmative defense of estoppel relied on by defendants (appellees) and such omitted elements were not supported by evidence.

The opinion in the first appeal summarizes the basic facts in this ease. Appel-lees’ contentions made at that time were overruled and are not before the court on this second appeal.

The material facts are as follows: In 1969 appellees executed a note to Gibraltar in the principal sum of $21,550.00 to evidence a loan used to purchase a townhouse which was security for the note. Monthly payments were made on the note according to its terms until 1971 when a payment of $9,100.00 was mistakenly credited to appel-lees’ account. That payment should have been credited to another customer’s account having a similar number to that of appellees’. In April 1974 appellees sold the townhouse to Mr. and Mrs. Farrish. The transaction was closed by a Title Company and the note marked “paid” on the basis of a payoff balance to Gibraltar of $9,100.00 less than was owing to it because of the clerical error. The error above mentioned was discovered after the sale of the townhouse when the customer, McCandless, who was entitled to the $9,100.00 credit, inquired about it. Suit was subsequently filed on March 10, 1975, by Gibraltar after its demands on appellees remained unsatisfied.

On the first appeal herein, this court held that the trial court should not have granted appellees’ motion for judgment that appellant take nothing; but also held that appel-lees’ defensive plea of equitable estoppel might be considered on the new trial.

On the second trial of the instant case after appellant, Gibraltar, rested its direct case the appellees also rested subject to a motion. The trial court then made the following statement, in part:

THE COURT: With respect to the charge of the Court, and before defendants have had the opportunity to dictate its motions, but anticipating what those motions will be and anticipating what this Judge is going to do with those motions, it is understood that the parties have stipulated the attorney’s fees of the plaintiff’s to be ten percent of $9,100, namely $910. Plaintiff is to recover those attorney’s fees, plus $9,100, the amount sued for, plus interest of $6,590, being eight and one fourth percent interest from April 11, 1974 to August 2, 1983, on the said $9,100, unless defendants’ affirmative defense of estoppel is found in their favor by the jury.
It is my understanding that defense counsel, Mr. Williamson, is requesting this Court, in view of the decision by the Court of Appeals in this very matter, and the pleadings, and the evidence, to permit him to argue the case first and to conclude it, on the grounds that he has the burden of proof now on the whole case, it being understood that plaintiff has established a prima facie right of recovery unless the affirmative defense of estoppel is found in defendants’ favor by the jury.
MR. WILLIAMSON: That’s correct.
THE COURT: So understood by both counsel?
MS. BELVAL: Yes, Your Honor.
THE COURT: Now we may have the Motions for Instructed Verdict by defendant. Go right ahead.

The appellees’ (defendants’) motion for instructed verdict was taken under advisement and carried along with the case, the trial court stating that he wanted to hold any final decision thereon until he found out what the jury did.

The charge of the court submitted only two special issues, both answered “yes,” as follows: (1) whether Gibraltar misrepresented the terms of the payoff to the Watsons at the closing in 1974, and conditionally submitted, (2) whether the Watsons relied upon such misrepresentation at that time.

Counsel for appellant specifically objected to the proposed charge submitted by the court on the grounds that the issues submitted by it did not cover all of the elements of equitable estoppel, particularly that there was no issue of detrimental reliance and also, no issue that the appellees were without means of acquiring the true facts. These contentions should have been sustained.

Appellant’s objections to the court’s charge were clearly stated. If the trial court was of the opinion that the evidence supported the giving of such two omitted issues, they should have been submitted to the jury, and the answers thereto dealt with at a later time.

This court in the case of Airline Commerce Bank v. Wilburn, 609 S.W.2d 813, 815 (Tex.Civ.App. — Houston [14th Dist.] 1980, no writ) stated the applicable rules concerning equitable estoppel as follows:

Equitable estoppel being an affirmative defense, the burden of proving it rests on the party asserting it and requires proof of all elements necessary to constitute it. Concord Oil Co. v. Aleo Oil and Gas Corp., 387 S.W.2d 635 (Tex.1965). In order to avoid liability on the note by estoppel, appellees must have established proof in the record of the existence of a false representation or a concealment of material facts; that the representation or concealment was made with knowledge, actual or constructive, of the facts; that the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; that it was made with the intention that it be acted on; and that the party to whom it was made must have relied or acted on it to his prejudice. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

The omitted issues were waived by appellees under the conditions and there was no basis for a take-nothing judgment against appellant. TEX.R.CIV.P. 279; Texas Employer’s Insurance Ass’n v. Neuman, 379 S.W.2d 295 (Tex.1964).

The record reflects that the basic facts necessary for recovery by appellant were stipulated as to principal, calculation of interest and attorney’s fees and appel-lees’ complete estoppel issue was waived. Appellant’s motion for judgment notwithstanding the verdict should have been granted. There is no reason to remand. This court should and does render the judgment that the trial court should have rendered. TEX.R.CIV.P. 434.

The judgment will be reversed and here rendered in favor of appellant as of November 14, 1983, for the amounts above indicated with judgment interest at the rate of 8V4% per annum. TEX.REV.CIV.STAT. ANN. art. 5069-1.05 (Vernon 1984); Houston Natural Gas & Fuel Co. v. Perry, 127 Tex. 102, 91 S.W.2d 1052 (1936); Carter v. McHaney, 373 S.W.2d 82 (Tex.Civ.App.— Corpus Christi 1963, no writ).


author: SEARS, Justice.

text:
    George SLOAN, Appellant, v. Ophelia SLOAN, Appellee.
    No. C14-84-207-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 1984.
    Moncie Rasmus, Jr., Houston, for appellant.
    Marsha Lynn Merrill, Marc D. Markel, Houston, for appellee.

      Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, Justice (Retired).
   OPINION

SEARS, Justice.

This is an appeal from a divorce decree wherein the court divided real property held in the name of a third person who was not a party to this lawsuit. The central issue to be determined on appeal is whether or not the district court could take such action in divesting the third person of her legal interest in the real property. We find the court erred and reverse in part and render judgment in accordance with this opinion.

The appellant and appellee were married in 1953 and separated in 1972. The appellant filed his original Petition for Divorce on July 13, 1982. Sometime during this separation the appellant moved in with Elizabeth Whiting and they subsequently purchased the property made the subject of this appeal. The original deed is not in the record. However, the appellant testified it was in his name and the name of Elizabeth Sloan (Elizabeth Whiting). The appellant testified his name was on the deed for the sole purpose of allowing Elizabeth to purchase the property. He further testified that Elizabeth made the down payment and all subsequent payments and that he had never paid anything for the property. Several months after the appellant filed for divorce he executed a deed transferring his interest in the property to Elizabeth. Subsequently this case was tried before a master who found the transfer from appellant to Elizabeth to be void and appellant and appellee were each awarded a one-half undivided interest in the property.

Within three days following the trial the appellant filed a motion to have the judge try the lawsuit. The motion was denied, his Motion for New Trial was overruled, and appellant perfected this appeal.

The appellant alleges in his first point of error that the trial court abused its discretion in classifying the real property as community property, and in divesting Elizabeth of her interest therein.

The authority for the action taken by the trial court can be found in TEX.FAM. CODE ANN. § 3.57 (Vernon Supp.1982-1983):

After a petition for divorce or annulment is filed and until a final decree is entered, if a spouse transfers real or personal community property or incurs a debt that would subject community property to liability, the transfer or debt is void with respect to the other spouse if the transfer was made or the debt incurred with the intent to injure the rights of the other spouse. In an action to void any transfer or debt the spouse seeking to void said transfer or debt shall have the burden of proving that the person dealing with the transferor or debtor spouse had notice of the intent to injure the rights of the other spouse.

It should be emphasized that a prerequisite to voiding the transfer is a finding that:

(1) the transfer was made with the intent to injure the rights of the spouse and,
(2) the transferee must have notice of the transferor’s intent to injure the rights of his spouse.

The trial court made findings of fact and conclusions of law that the transfer of the property from appellant to Elizabeth was made with the intent to injure the rights of the appellee and that Elizabeth had notice of such intent. There is no evidence in the record to support this finding and conclusion. Elizabeth did not testify. Appellee had no knowledge of the existence of this property and did not testify or allege fraud or intent to injure her rights in any community property interest. Appellant testified that he had no interest in the property, that no community property assets were used or pledged for the down payment or any subsequent payments, and that the property always belonged to Elizabeth. Although a community property interest may have attached if the appellant executed a promissory note for the purchase of the property, there is no evidence that community property assets were used or pledged. Further, in order to void the transfer from appellant to Elizabeth, the burden of proof is on the appellee to show appellant intended to defraud her and that Elizabeth had notice of such intent. Appellee has failed in this burden because there is no evidence of appellant’s intent to defraud appellee and no evidence that Elizabeth had notice of any such intent. Appellant’s first point of error is sustained.

It is not necessary to consider the appellant’s other points of error.

As to the property known as Lot Six, in Block One of Brays Village East, Section Two, located in Harris County, Texas, the judgment of the trial court is reversed and judgment is hereby rendered that the property is not community, and as to this property appellant and appellee take nothing. Otherwise, the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Rebecca TONAHILL d/b/a Utopia Records & Gear, et al, Appellants, v. SOUTHWEST AUTOMATED TICKETS SERVICE d/b/a Top Ticket, Appellee.
    No. A14-84-627CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 21, 1984.
    Jeffrey W. Gillespie, Bellaire, for appellants.
    Joe C. Holzer, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

PER CURIAM.

Appellant filed a motion to extend time to file the statement of facts and subsequently tendered the document. We find appellants have not timely filed the motion. TEX.R.CIV.P. 21c, 386. Therefore, we deny their motion.

The statement of facts was due on September 24, 1984. See TEX.R.CIV.P. 386. Any request for an extension was due by October 9, 1984. See TEX.R.CIV.P. 21c. Appellants filed a motion for an extension on October 18, 1984, nine days after the motion was due and twenty-four days after the statement of facts was due.

An extension of time in which to file the statement of facts may be granted if a timely motion is filed reasonably explaining the necessity for the delay. TEX.R.CIV.P. 21c. This Court, however, may not enlarge the time for filing the statement of facts except pursuant to Rule 21c. TEX.R. CIV.P. 437. The Texas Supreme Court had the opportunity to interpret Rules 21c, 386, and 437 as the rules pertain to motions to extend time to file the statement of facts. The Texas Supreme Court held this Court does not have the authority to consider a motion filed more than fifteen days after the date the statement of facts is due. B.D. Click Co., Inc. v. Safan Drilling Corp., 638 S.W.2d 860 (Tex.1982).

Since the issuance of the opinion in B.D. Click, the Texas Supreme Court has amended the Texas Rules of Civil Procedure, effective April Í, 1984. The only rule change pertinent to this inquiry involves a sentence added to appellate Rule 386. The sentence states, “The court shall have no authority to consider a late filed transcript or statement of facts, except as permitted by Rule 21c.” TEX.R.CIY.P. 386. This sentence is merely the restatement of the holding in B.D. Click.

Appellants’ motion to extend time to file the statement of facts relies on events which have no relevancy to the absence of discretion or authority for this Court to consider a motion filed more than fifteen days after the date the statement of facts became due. B.D. Click Co., Inc. v. Safan Drilling Corp., 638 S.W.2d 860 (Tex.1982); TEX.R.CIV.P. 21c, 386, and 437.

Accordingly, the motion is denied.


author: STEWART, Justice.

text:
    B.G. and Donnabee LARKINS, Appellants, v. CITY OF DENISON, Appellee.
    No. 05-83-01289-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 26, 1984.

      Nance, Caston & Sanders, Sherman, for appellants.
    Ronald H. Clark, Henderson, Bryant & Wolfe, Sherman, for appellee.
    Before ALLEN, GUILLOT and STEWART, JJ.
   STEWART, Justice.

Appellants, B.G. and Donnabee Larkins, challenge the trial court’s granting summary judgment in favor of appellee, City of Denison. Appellants contend that summary judgment was both procedurally and substantively improper. We do not agree and, therefore, affirm the trial court’s judgment.

Appellants brought this action seeking damages, injunctive relief and a judgment declaring void the ordinance under which the City sought to annex an area in which a portion of their land was located. Appellants alleged that the ordinance was void from its inception because it was arbitrarily and capriciously enacted. They also claimed that the ordinance was fraudulent because the City did not have the resources necessary to implement the services which TEX.REV.CIV.STAT.ANN. art. 970a (Vernon 1963 and Vernon Supp.1984) requires it to provide for newly annexed areas. The City answered and specially excepted to the Larkins’ petition, contending that it did not state a cause of action.

Without obtaining a ruling on its special exceptions, the City moved for summary judgment. To counter the “arbitrary and capricious enactment” claim, the City urged that whether the ordinance was enacted for arbitrary and capricious purposes was a political question not subject to judicial resolution. In response to the “fraudulent ordinance” claim, the City stated that appellants’ sole remedy was to seek disan-nexation if the City failed to provide services required by the statute. Appellants did not respond to the City’s motion. The trial court found each ground sufficient to defeat appellant’s claims and therefore granted summary judgment.

Appellants first contend that summary judgment was improperly granted because the trial court did not first rule on the City’s special exceptions and allow them to amend in response thereto. We disagree. Appellants filed no answer or response to the City’s motion; consequently, they are limited on appeal to the contention that the grounds expressly presented to the trial court by the motion are insufficient as a matter of law to support the summary judgment. As non-movants, they may not raise other issues, such as the one urged here, as grounds for reversal. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); TEX.R. CIY.P. 166-A(c). Accordingly, we overrule this point of error.

Appellants next urge that the trial court erred in granting summary judgment because their petition raises unresolved factual questions of whether the ordinance was enacted for arbitrary and capricious purposes. They argue that if they could show the city council was so motivated when it passed the ordinance, they would be entitled to a declaratory judgment nullifying the ordinance. We cannot agree with appellants’ conclusion.

The Texas Constitution provides that one branch of government may not exercise those powers committed to a coordinate branch. TEX.CONST.ART. II, § 1. Therefore, if a question is, by its nature, committed to the political branches of state government, then a court is not free to substitute its judgment for that body’s decision. Wolf v. Young, 277 S.W.2d 744 (Tex.Civ.App. — Corpus Christi 1955, writ ref’d n.r.e.). It is well-settled that the determination of municipal boundaries is a question for political rather than judicial resolution. City of Wichita Falls v. State ex rel. Vogtsberger, 533 S.W.2d 927 (Tex.), cert, denied, 429 U.S. 908, 97 S.Ct. 298, 50 L.Ed.2d 276 (1976). Under article 970a, the legislature delegated its powers in this regard to the cities, subject to certain limitations. Because those limitations apply to the location of the annexed area rather than to the purposes for which annexation is sought, appellants may not judicially challenge the validity of the annexation ordinance on the basis that it was improperly motivated. State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957); Superior Oil Co. v. City of Port Arthur, 628 S.W.2d 94 (Tex.App. — Beaumont 1981, writ ref’d n.r.e.), appeal dismissed, 459 U.S. 802, 103 S.Ct. 25, 74 L.Ed.2d 40 (1982).

Generally, the legislature has granted the governing municipal body the power to annex territory so long as it is adjacent to and contiguous with the City’s present boundary and is within its extraterritorial jurisdiction. City of Wichita Falls, 533 S.W.2d at 929. The City’s summary judgment proof adequately establishes that it did not violate any of these limitations, and the appellants do not contend otherwise. We conclude, therefore, that the ordinance is not void.

Because this suit was brought by private parties, the City need not prove that the annexation process was wholly without defect. If the City did not exceed the scope of its delegated powers, other defects in the annexation process could be asserted only by the State in a quo warran-to proceeding. Hoffman v. Elliott, 476 S.W.2d 845 (Tex.1972); City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695 (1944).

Appellants next contend that they were entitled to a judgment declaring the ordinance void because the City could not provide the services which article 970a requires it to provide annexed areas. Appellants concede that, since they filed suit prior to the time that the ordinance became effective, they have not sought disannexation under article 970a, § 10(F). However, appellants urge that they are not required to seek disannexation because they seek to have the ordinance declared void. The City counters this argument by contending that section 10(F) is the exclusive remedy for failure to meet the services plan if and when such failure occurs. We agree with the City.

When a city fails to implement the services plan within the specified time after the annexation ordinance takes effect, the relevant portion of article 970a, § 10(F) allows: a majority of the qualified voters [of] ... such ... area [to] ... petition ... to disannex such ... area. Should the ... city fail or refuse to disannex, ... any ... of the signers of such petition may

file in a district court_ [I]f the ... court finds that a valid petition was filed, ... and that the city failed to perform its obligations, ... it shall enter an order disannexing such ... area.

Our supreme court has not decided whether section 10 is the exclusive remedy for failure to meet the services plan required by article 970a. However, another intermediate appellate court considered this question in Spencer v. City of Brownsville, 458 S.W.2d 504 (Tex.Civ.App. — San Antonio 1970, no writ). Then-Chief Justice Barrow wrote: “[I]t cannot be said that such concern [over the inability to provide the required services], even if established, would render the annexation ordinance void. Secftion] 10 of the Act provides a remedy in the event that the City fails to furnish such services.” Spencer, 458 S.W.2d at 506. We agree. Where a statute provides a particular remedy, the courts should be wary of reading into it other remedies which negate the protections for competing interests which the legislature considered when shaping the remedy. See, Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1976). Accordingly, we hold that a prospective failure to meet a services plan alone does not create in appellants the right to seek to invalidate an annexation ordinance.

Although we hold the city council properly exercised its delegated authority to legislate when it enacted the annexation ordinance, appellants could not in any event recover money damages for legislative acts. TEX.REV.CIV.STAT.ANN. art. 6252-19, § 14(2) (Vernon 1970). In addition, injunctive relief is unavailable because the courts will not enjoin the enactment of an annexation ordinance unless there is a clear showing that its mere enactment will cause irreparable harm. Universal City v. City of Selma, 514 S.W.2d 64 (Tex.Civ.App. —Waco 1974, writ ref’d n.r.e.). At no time did appellants urge that the mere enactment of the ordinance would irreparably harm them.

Because the City’s grounds for summary judgment were well-founded, the trial court’s judgment is affirmed.

      . All citations are to TEX.REV.CIV.STAT.ANN. unless otherwise indicated.


author: KENNEDY, Justice.

text:
    James Clay COX, Appellant, v. Lisa BOHMAN, Appellee.
    No. 13-84-142-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 29, 1984.
    Rehearing Denied Dec. 20, 1984.

      Jo Chris G. Lopez, San Antonio, for appellant.
    Randall P. Crane, San Benito, for appel-lee.
    Before NYE, C.J., and KENNEDY and SEERDEN, JJ.
   OPINION

KENNEDY, Justice.

This is a suit for damages resulting from personal injuries received in an automobile collision. Plaintiff recovered; defendant appeals. We reverse and remand.

By his fourth and fifth points of error, appellant complains of the introduction of evidence that appellant received and paid a traffic ticket as a result of the automobile collision and that the admission of this evidence was calculated to and probably did result in the rendition of an improper verdict.

Unless a plea of guilty to a traffic offense was made in open court, according to law, evidence of such guilty plea is not admissible in a civil suit for damages arising out of negligence giving rise to the charge. Barrios v. Davis, 415 S.W.2d 714 (Tex.Civ.App. — Houston 1967, no writ). See also Estate of Brown v. Masco Corp., 576 S.W.2d 105 (Tex.Civ.App. — Beaumont 1978, writ ref’d n.r.e.). Appellant stated without equivocation that he did not plead guilty in open court; rather, he paid the fine to a clerk. See Johnson v. Woods, 315 S.W.2d 75 (Tex.Civ.App. — Dallas 1958, writ ref’d n.r.e.). In cases involving moving traffic violations for which the maximum punishment is a fine, payment of the fine constitutes a finding of guilty, “as though a plea of nolo contendere had been entered by the defendant.” TEX.CODE CRIM. PROC.ANN. art. 27.14 (Vernon Supp.1984). A plea of nolo contendere to a traffic violation cannot be admitted into evidence in a civil suit for damages arising out of the same incident. TEX.CODE CRIM. PROC.ANN. art. 27.02 (Vernon Supp.1984) and TEX.R.EVID. 410.

Although ,a certified copy of the docket sheet of the City of Harlingen Municipal Court reflects a plea of “guilty” was entered, the Clerk of that court testified that entry would have been made if the find had merely been paid. It has not been proved that appellant entered a plea of “guilty,” and the evidence that appellant received and paid a traffic ticket should have been excluded. Johnson v. Woods, 315 S.W.2d at 77. Appellant’s fourth point of error is sustained.

Appellee argues that, even if it was error to admit the evidence that appellant received and paid a traffic ticket, such error was “harmless” in that it was not calculated to and did not result in the rendition of an improper verdict and judgment. TEX. R.CIV.P. 434.

Appellee argues that the evidence in question was admissible to impeach appellant’s statement that he was a good driver; however, appellee cites ús to no case which holds that this evidence should be admitted as impeachment evidence, and we have found none.

Appellee also asserts that, while the jury found the appellant negligent in several respects, it did not find that appellant was “driving at a greater rate of speed than a person using ordinary care would have driven.” (Special Issue No. 6). However, the jury also found that appellant was negligent in failing to properly apply his brakes (Special Issues 1 and 2); failing to maintain an assured clear distance (Special Issues 8 and 9); and failing to keep a proper lookout (Special Issues 10 and 11). “Failure to control speed” encompasses more than just “speeding.” See TEX.REV. CIV.STAT.ANN. art. 6701d § 166(b), (c) (Vernon 1977).

When all the evidence on the issue of liability is considered together, it amounts to appellant’s story, appellee’s story and the fact that the investigating officer gave appellant a ticket. We believe that the introduction of this evidence must constitute harm to appellant. See Estate of Brown v. Masco Corp., 576 S.W.2d 105, 107 (Tex.Civ.App. — Beaumont 1978, writ ref’d n.r.e.). Appellant’s fifth point of error is sustained.

The judgment of the trial court is REVERSED and the cause REMANDED to the trial court for a new trial.


text:
    Kenny Todd MURRAY, Appellant, v. The STATE of Texas, Appellee.
    No. C14-84-183CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 29, 1984.
    Wendell Odom, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J., Retired.
   OPINION

T. GILBERT SHARPE, Justice, Retired.

Kenny Todd Murray, appellant, was found guilty in a jury trial of aggravated robbery. The court imposed punishment of 75 years confinement, taking into consideration the enhancement paragraph of the indictment, to which appellant had pled true.

In two grounds of error, appellant complains of certain comments made by the prosecutor during closing argument, and of evidence related to alleged extraneous offenses coming before the jury. We find no error in the record and affirm.

On April 21, 1981, a Safeway store located in the vicinity of Bellaire and Gessner streets in Houston was subject to a robbery. A cashier employed by Safeway testified that she was approached at the check-out counter by two black men, one of whom was the appellant. One of the two men instructed her to give him all the money in the cash register. He twice displayed a gun to the cashier in a threatening manner, placing her in fear of her life. After the cashier had surrendered the contents of the register, the two men fled the store.

A security officer employed by Safeway had entered the store while appellant and his co-defendant were still at the cash register. Upon observing the cashier emptying the register, he followed the two suspects out of the store. The officer saw the two suspects enter a car parked on the side of the store. He followed them in his own vehicle out of the parking lot, onto the street. At several points during the pursuit the suspects threatened the officer with a gun by pointing it in his direction. The chase ended when appellant’s car became disabled due to a collision with a second police vehicle. The arresting officer recovered a pistol which had been thrown from the car after it became disabled. The pistol was identified by the Safeway security officer as the same one used to threaten him during the earlier pursuit of the two suspects. The appellant and his co-defendant were immediately placed under arrest. Appellant was later tried separately from his co-defendant.

In his first ground of error, appellant contends that the prosecutor erred during jury argument by allegedly commenting upon appellant’s failure to testify. The record reflects that defense counsel made the following comments during his argument:

MR. ODOM: (Defense Counsel): Look at what he says in this statement. “She was getting the last bit of money and this dude comes in and starts boogeying toward the Safeway personnel.” A two page statement that is perfectly written and then you throw in a little street language here and there to sort of make it look good. This man did not create a single thing in this two page statement. And look at the construction of the sentences. Look how the word is used, like esplanade, and you tell me this man is going to be using those words, and those are words that came out of his mouth. This man signed this statement, and this statement was based upon what I believe the officer already knew. Look at it. Look at the statement. If you are going to convict a man, convict the man on what happened out there; don’t convict him on a statement that was made when the man was allegedly not frightened, was never corrected once and uses language that he would never use.

In the State’s closing argument the prosecutor argued as follows:

MR. KYLES (Prosecutor): Now, Mr. Odom, I daresay, that you have resorted to some stereotype in order to cast some questions on whether or not this is a valid confession. The defendant is seated before you, apparently a young black male. That is virtually all we know about him, other than the fact that he appears to be healthy, and we allege that at least on this evening he was involved in an aggravated robbery. We don’t know anything about his manner of speech, we know that Detective Roberts said that he appeared to be of average intelligence and this is all. We don't know whether or not he resorts to quote unquote gettoese [sic] when he communicates with another person or whether or not he speaks the King’s English. We don’t know whether he is capable of having written everything that appears in this; and ladies and gentlemen, it would be inappropriate for you to assume, based on the facts and what you see in this courtroom, that he is incapable of producing a statement of this quality.

A proper jury argument, among others, may be made in answer to the argument of opposing counsel. Darden v. State, 629 S.W.2d 46 (Tex.Crim.App.1982). By arguing to the jury that his client’s speech patterns and vocabulary were inconsistent with the confession introduced by the state, defense counsel invited the comment to which appellant directs his complaint. See Porter v. State, 601 S.W.2d 721 (Tex.Crim.App.1980); Carraway v. State, 642 S.W.2d 218 (Tex.App. — Houston [14th Dist.] 1982, no pet). Ground of error number one is overruled.

In his second ground of error, appellant urges that error occurred when certain evidence of alleged extraneous offenses came before the jury. During the trial, a witness for the state testified that certain items of alleged contraband, specifically a syringe and needle, were found in appellant’s vehicle after appellant’s arrest. Upon objection by defense counsel, the trial court ordered the jury to disregard this testimony. Also, at a later point in the proceedings, defense counsel elicited this same testimony from a subsequent witness. When a defendant offers the same testimony as that objected to, or the same evidence is introduced from another source, without objection, the defendant is not in a position to complain on appeal. Womble v. State, 618 S.W.2d 59 (Tex.Crim.App.1981). Additionally, even if appellant had not developed the testimony of which he now complains, the record reflects that the court properly instructed the jury to disregard it. The general rule is applicable that an instruction by the trial judge to the jury to disregard such evidence, as under the circumstances here, will be sufficient to cure any error. Williams v. State, 643 S.W.2d 136 (Tex.Crim.App.1982). Appellant’s final ground of error is overruled.

The judgment of the trial court is affirmed.


text:
    Maxie GILLIAM, et al., Appellants, v. Donald Frank WILLIAMS, et al., Appellees.
    No. C14-84-099CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 29, 1984.

      Les Cochran, Barnhart, Mallia, Cochran & Luther, Houston, for appellants.
    Frank Catón, Crain, Catón, James & Womble, Houston, for appellees.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J., Retired.
   OPINION

SEARS, Justice.

This is an appeal from a take nothing judgment as to one of two defendants in a suit brought by appellants for the wrongful death of their son in an automobile/pedestrian accident. In two points of error the appellants attack the jury findings that the appellees Williams and Schmidt were not racing and that the negligence of Williams alone proximately caused the death of their son. We affirm.

On April 2, 1978, fifteen-year-old Perry Gilliam was walking toward his home along a grassy median that separated north and southbound traffic on Sabo Street in a Houston subdivision. Williams and Schmidt were traveling north along Sabo Street in separate vehicles when Williams lost control of his car. The car jumped the median, hit Gilliam, tossed him into the air and carried him across the southbound lanes of traffic, through a yard and wooden fence, and into the back of a brick house. Gilliam died from injuries sustained in that collision. Williams was found guilty of involuntary manslaughter and served a prison term. In the civil trial for the wrongful death of Gilliam, the appellants and Williams alleged that Williams and Schmidt were racing at the time of the accident. The case was submitted to the jury on special issues, the answers to two of which are the subject of this appeal. The jury found in answers to Special Issue No. 1 that Williams and Schmidt were not racing, and in Special Issue No. 3 that only the negligent acts of Williams proximately caused the death of Perry Gilliam. Judgment was entered against Williams for $970,000.00.

The appellants assert that the jury’s answers to these two issues are so against the great weight and preponderance of the evidence as to be manifestly unjust, and seek a reversal of the trial court judgment and remand for a new trial as to Schmidt.

In reviewing factual insufficiency points of error, we must consider all of the evidence in the record that is relevant to the facts challenged. If the finding of the facts, considering all the evidence, is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, we must reverse and remand for a new trial. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The evidence before this court consists of the testimony of six persons who were at or near the scene of the accident. Both Williams and Schmidt testified at trial. Williams, who was found to be intoxicated at the time of the accident, gave conflicting testimony. At the civil trial he testified that he and Schmidt raced and that Schmidt initiated it, but in deposition testimony introduced during trial he stated that Schmidt did not speed up or slow down during the time they were both on Sabo Street. He testified at the criminal trial that he was not drunk and at the civil trial that he was drunk. Schmidt testified that he never signaled to the appellee to race and that he did not race, but he admitted making the statement that the appellee tried to race with him and would have passed him if he had not lost control of his vehicle.

Wanda Noles, who was in her back yard over one-half block from the scene of the accident, testified that she “heard” a car or cars speeding down the street immediately prior to the accident. However, she did not see the cars or the accident and there was no evidence introduced to support or rebut what she in essence “heard.” Robert Prescott, the paramedic attending Gilliam at the scene, testified that Williams told him that he and Schmidt were racing, that Schmidt’s car hit his and caused him to lose control of his car and that Schmidt was therefore responsible for the accident. This testimony is merely a repetition of Williams’ testimony and is unsupported by any physical evidence. Dana Harmier, who was standing in a neighbor’s yard two blocks from the accident, heard the crash and saw Schmidt’s car skid around the corner where she was standing. She wrote down Schmidt’s license plate number. Schmidt, who saw the accident in his rearview mirror, claimed that he skidded around that corner because he was speeding home to report the accident and call an ambulance. Stephanie Gooch Childers was an eyewitness whose car was passed by both Williams and Schmidt immediately before the accident. She testified that she didn’t think the two were racing, but she conceded they could have been racing. She further stated Williams was going faster than Schmidt, that Schmidt’s car did not hit Williams’ car, and that Williams lost control as he tried to dart in front of her and change from the right lane to the left.

Although we agree that the accident was tragic and should never have occurred, we do not agree that the jury overlooked overwhelming proof of racing. It was the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve any inconsistencies. The jury was entitled to believe all or none of the testimony of each of the witnesses. Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817 (1957). The jury apparently believed Schmidt and disbelieved Williams. Further, they apparently recognized that the so-called “earwitness” testimony of Wanda Noles was not as clear and convincing as the eyewitness testimony of Stephanie Gooch Childers.

After reviewing all the evidence, we find there is evidence of sufficient probative value to support the jury’s findings, and we find they are not so against the great weight and preponderance of the evidence as to be manifestly unjust. The points of error are overruled and the judgment of the trial court is affirmed.


text:
    Michael D. O’GRADY, Appellant, v. GERALD D. HINES, INC. d/b/a Gerald D. Hines Interests, Appellee.
    No. C14-84-150-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 29, 1984.

      Arthur M. Lincoln, Gary Lee, Bates & Lee, Houston, for appellant.
    Linda Broocks, Gail Stewart, Baker & Botts, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

This is an appeal from a summary judgment granted to Appellee. Appellant (Plaintiff) filed a lawsuit to enforce an oral modification of a written contract. Following discovery, Appellee (Defendant) filed a motion for summary judgment which was granted by the trial court. We find no error and affirm.

Appellant contends in two points of error that the trial court erred in failing to consider summary judgment evidence of an oral modification of a written contract, and further that the trial court erred in granting the Motion for Summary Judgment because Appellant raised a genuine fact-issue of oral modification of the written contract.

Appellant was employed by Appellee as a senior marketing representative. His duty was to lease office space in buildings owned by Appellee from prospects within an assigned territory. Appellant and Ap-pellee executed a written Office Leasing Compensation Plan which became the basis of this lawsuit. The pertinent provisions of this Plan are as follows:

(1) brokers could not earn commissions for leases executed after their employment with Appellee terminated;
(2) waiver of any provision of this Plan must be in writing; and,
(3) the waiver of any provisions of this plan in any particular case shall not constitute a continuing waiver of such provisions, nor shall any course of conduct effect a modification or waiver of any provision of this Plan.

Under this Plan, Appellant’s commissions were earned and paid upon execution of the lease agreement for the leased premises. This Plan remained in effect from the date of Appellant’s initial employment until January 1, 1976, at which time a new Plan was executed. The new Plan merely increased the amount of commissions that Appellee agreed to pay per square foot of leased space, and further provided for the performance bonus to be awarded in certain circumstances. All other material provisions of the Plan remained in effect in accordance with the original 1975 Plan.

In November of 1976, Bill Wolff, a junior marketing representative assigned to Appellant’s territory, made an initial call on Houston Oil and Minerals (HOM) and discovered that they had a possible interest in leasing office space in Appellant’s new First International Plaza building. At this point in time, Appellee was in the process of negotiating with the Horne Company to use it as an outside realtor for the leasing of the First International Plaza building.

This was a custom normally followed by Appellee in regard to its downtown buildings. Appellant, and other members of the direct marketing division, were disturbed over the potential loss of commissions due to the involvement of outside brokers. Bill Hudak, vice-president and general manager of the Direct Marketing Division, assured Appellant and Bill Wolff that HOM would not be withdrawn from their territory, and further that the involvement with the Horne Company would not affect their eligibility for commissions due under the Plan. This is the “oral agreement” made the basis of Appellant’s suit for oral modification of the written contract.

In February of 1977, Appellant’s employment with Defendant was terminated. Pursuant to the provisions of the Plan, Appellant could not earn any commissions for any leases executed subsequent to that date. On February 24, 1978, more than one year after the termination of Appellant’s employment, HOM executed a lease agreement with Appellee. Appellant thereafter filed his lawsuit seeking oral modification of the written contract and payment of commissions due under the HOM lease.

After careful examination of the record brought forward on this appeal, including the depositions of the parties, instruments filed, and affidavits in support of the instruments filed, we find that the “oral agreement” consisted of: (1) HOM would not be withdrawn from Appellant’s territory, and, (2) the involvement with the Horne Company would not affect the eligibility for commissions due under the Plan. Appellant, subsequent to his termination, attempted on several occasions to obtain Appellee’s written modification of the Plan. Appellee at all times declined to enter into a written modification of a Plan, and refused to expand the oral agreement to include a waiver of that provision of the Plan providing that no commissions shall be earned for leases executed after the termination of the employment of a broker. We can find no evidence in the record to support Appellant’s contention regarding oral modification of that portion of the Plan. Appellant has wholly failed to present the trial court or this court any evidence of any oral modification other than as shown above. Appellant would have us believe that because Appellee paid commissions to Appellant and/or other brokers for leases executed after their employment was terminated, that this constitutes a waiver of that provision providing that no commissions shall be made after termination. This position is totally unsupported by any evidence.

Appellant contends that the Plan is ambiguous in that it provides that it can be modified only in writing, that the waiver of any single provision does not constitute a continuing waiver of that provision, and that the oral modification does indeed modify these written provisions.

When a written contract is clear and unambiguous, its provisions must be construed and applied as a matter of law. Gibson v. Bentley, 605 S.W.2d 337 (Tex. Civ.App. — Houston [14th Dist.] 1980, writ ref’d n.r.e.). A contract is ambiguous only when, after the application of established rules of construction, the proper meaning of the contract remains genuinely uncertain. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). See Reyna v. Gonzalez, 630 S.W.2d 439 (Tex.App. — Corpus Christi 1982, no writ). Reyna, like Appellant, attempted to collect real estate listing commissions after the termination of his employment on a contract similar to the one at issue. The court found that there was no question of ambiguity and that the express terms of the contract provided there shall be no right to recover commissions after termination of employment. Appellant further contends that because he raised the question of ambiguity of the contract, he was entitled to a trial by jury. The Supreme Court has ruled that the question of whether or not a contract is ambiguous is not a fact question, but is a question of law for determination by the court. R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517 (Tex.1980).

Appellant’s points of error are overruled and the judgment of the trial court is affirmed.