text:
    James Earl BAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-00028-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 20, 1984.

      Herb Ritchie, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., James C. Brough, Casey O’Brien, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before DUGGAN, DOYLE and LEVY, JJ.
   OPINION

DUGGAN, Justice.

After a jury rejected appellant’s defense of insanity and found him guilty of attempted murder, the court assessed his punishment at ten years confinement. Appellant urges six grounds of error on appeal.

The evidence is undisputed both as to appellant’s eight-year history of mental illness prior to the offense charged, and as to his conduct on that occasion.

The complainant, Roy Wayne Baker, the appellant’s 21 year old brother, testified that on April 4, 1983, he and the 28 year old appellant were alone in their parents’ home watching television in the living room in the late morning. Appellant asked Roy if he could see the hunting knife which Roy wore sheathed in a holster on his belt. Roy handed over the knife and appellant sat nearby, opening and closing the weapon for five to ten minutes. He finally closed the knife, placed it on the coffee table, and left the room. Roy then lay down on the living room floor, continued to watch television, and fell asleep. He was awakened when appellant stabbed him with the knife in the stomach. Roy looked up to see appellant standing about two feet from him. Appellant said nothing, walked toward the door, turned and looked back at Roy as he walked out the door, and left the house. With the knife stuck in his stomach, Roy crawled to the telephone and called a neighbor, who came immediately to the Baker home and administered first aid until paramedics arrived and took Roy to a hospital. Following surgery, Roy was hospitalized for more than two weeks.

At about midnight, approximately 12 hours after the stabbing, appellant phoned the Houston Police Department, told them he had stabbed his brother, and asked them to meet him at a restaurant parking lot some four to six miles from his family’s home. When the two officers who were dispatched arrived at the parking lot at about 12:30 a.m. April 5th, appellant approached them, identified himself as the person who had called for them, and surrendered himself. The officers took him into custody and waited with him at the restaurant location outside the city limits until a sheriff’s deputy arrived and took custody of appellant.

Appellant did not testify at trial, where his defense was limited to the issue of insanity.

In his first two grounds of error, appellant urges that the trial court erred in overruling both his motion for instructed verdict and his motion for judgment non obstante veredicto because his affirmative defense of insanity “was proven as a matter of law.” Because of this legal insufficiency, appellant asserts he is entitled to a reversal and entry of a judgment of acquittal.

In his third ground of error, appellant urges that the trial court abused its discretion in failing to grant a new trial, the trial judge having stated at the conclusion of appellant’s motion for new trial hearing that the verdict was against the great weight and preponderance of the evidence. We consider appellant’s complaint to be not only that the court abused its discretion, but also that the verdict rejecting appellant’s affirmative defense of insanity was against the great weight and preponderance of the evidence, entitling him to a reversal of the conviction and a remand for retrial.

Prior to the creation of the courts of appeals, and their investiture with criminal appellate jurisdiction, a defendant who failed to receive a favorable jury finding on the issue of insanity was restricted on appeal to the Court of Criminal Appeals to the assertion of the ground that he had established his defense as a matter of law. That court was without jurisdiction to entertain a factual challenge that the jury verdict was contrary to the great weight and preponderance of the evidence. Combs v. State, 643 S.W.2d 709, 716 (Tex.Crim.App.1982); White v. State, 591 S.W.2d 851, 854-55 (Tex.Crim.App.1979).

Under the provisions of the 1980 amendment to art. V, sec. 6 of the Texas Constitution, effective September 1, 1981, the courts of appeals are vested with conclusive authority over all questions of fact presented on appeal. Consistent with that mandate, Tex.Code Crim.P. art. 44.25 (Vernon Supp.1984), likewise effective September 1, 1981, provides that “courts of appeals ... may reverse the judgment in a criminal action, as well upon the law as upon the facts.”

We interpret this grant of authority to mean, as at least two other courts of appeals have already determined, that we have jurisdiction to consider great weight and preponderance fact questions in cases involving the affirmative defense of insanity. Van Guilder v. State, 674 S.W.2d 915 (Tex.App.-San Antonio 1984, mo pet.); Schuessler v. State, 647 S.W.2d 742 (Tex.App.-El Paso 1983, pet. granted).

In passing on a challenge that a jury finding is against the great weight and preponderance of the evidence, the reviewing court is to consider all the relevant evidence presented. If after doing so it determines that the defendant at trial carried his burden of proof as to an affirmative defense and that the jury’s verdict was manifestly unjust, the reviewing court has the duty to reverse the trial court judgment and remand the case for new trial, regardless of whether the record contains some evidence of probative force in support of the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Insanity is an affirmative defense upon which the defendant has the burden of proof by a preponderance of the evidence. Tex.Penal Code Ann. sec. 8.01(a) and sec. 2.04(d) (Vernon Supp.1984); Graham v. State, 566 S.W.2d 941, 943 (Tex.Crim.App.1978). It is not necessary for the state to present expert medical testimony that a defendant is sane in order to counter defense expert witnesses, and lay witness testimony may be accepted over that of experts. Graham, supra. However, with the establishment of factual review authority in the courts of appeals, if the affirmative defense of insanity is raised by credible evidence, the state must either negate the defense or risk the establishment of the defendant’s burden of proof either as a matter of law or as a matter of fact, i.e., by the great weight and preponderance of the evidence. Tex.Penal Code art. 2.04(d); Van Guilder, 674 S.W.2d 915; Schuessler, 647 S.W.2d 742; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The defense introduced medical records showing appellant’s eight-year course of hospitalization and treatment for severe mental illness beginning in 1975, including four admissions to the Harris County Psychiatric Hospital and five periods of treatment at Austin State Hospital, interspersed with treatment at Harris County Mental Health and Mental Retardation Authority (MHMR) outpatient programs and the facilities of the Texas Research Institute for Mental Science in Houston. Appellant was diagnosed on every entry and discharge report as paranoid schizophrenic. Typical of hospital summary sheets introduced was the Austin State Hospital admission diagnosis of January 4, 1980, upon the third of appellant’s five admissions there:

[H]istory of severe paranoid schizophrenia symptoms since age 21. He has been hospitalized on numerous occasions, responds fairly well to medication but does not continue outpatient treatment ... [Diagnosis:] Schizophrenia Paranoid Type.

The state agreed with a summary in appellant’s brief of the findings of the appellant’s hospital records:

Voluminous records were entered into evidence which documented Appellant’s treatment at four different mental institutions. Hospital summary sheets, read into evidence, revealed that Appellant was plagued by voices and hallucinations, that he screamed, laughed or cried at totally inappropriate times, and that he believed himself to be God.

Mr. Rob Olsen, appellant’s clinic caseworker, testified that appellant was first admitted to the MHMR’s Northwest Clinic in September 1975, and had attended the clinic “off and on” for eight to nine years; that he first became appellant’s caseworker in November 1979; that at the time of the stabbing, appellant had been enrolled for about one year, or since May 1982, in the clinic’s “day hospital program,” a 2lh hour-per-day, four-day-a-week program for “chronic, high risk patients” who, if they did not receive such clinic treatment, would likely require a hospital setting at some point. The program provided group therapy, recreation, exercise, and medication (appellant was on a “relatively high” dosage of Haldol, a tranquilizer).

Olsen observed appellant’s behavior over a 3½ year period, both during individual counseling and therapy sessions and while appellant was in the waiting area. Appellant typically showed one of two types behavior: quiet and withdrawn, or angry. Appellant’s moods could change rapidly and Olsen had seen appellant have unprovoked verbal outbursts on some 20 to 30 occasions. Appellant was delusional and subject to hallucinations, and Olsen observed him on occasions talking to a tatoo on his hand, and many times simply sitting alone talking to himself. He would “temporarily get anxious in situations where he didn’t have a real day-to-day familiarity with something,” such as when he was uncomfortable about his sister coming to visit the family and “took off” to El Paso for two to three weeks.

While records showed that appellant last appeared at the clinic March 22, 1983, 13 days before the stabbing incident, Olsen was “pretty certain” he was there later than that. Although appellant was one of the four or five “most severely ill” of his 40 or 50 patient caseload, Olsen never saw appellant do violence to other persons or destroy property, and he could not say that there were occasions when appellant did not know the difference between right and wrong.

Dr. John Nottingham, the psychiatrist who examined appellant on April 26, 1983, on the court’s order, testified that he determined from the examination that appellant was a paranoid schizophrenic; that without reviewing medical history records he was unable to determine, based on his 45-min-ute to one-hour interview, whether appellant was sane or insane at the time of the offense; but that he determined that appellant had no delusional or bizarre thinking or disturbed belief systems at the time of his interview, and was competent to stand trial. Later, based on both his interview examination and his review of appellant’s current outpatient clinic records, Dr. Nottingham concluded that

the medical probability is that on the date of the alleged offense, that [appellant] was exhibiting a significant mental illness, and that mental illness directly affected his ability to appreciate the wrongfulness of the alleged activity with which he’s charged, and that in my opinion, he was legally insane at the time of the alleged offense.

Because Dr. Nottingham felt that appellant did not have the ability to appreciate the wrongfulness of the alleged criminal activity, he did not feel it necessary to pursue whether appellant was able to conform his conduct to the law’s requirements. Nottingham believed that appellant realized what he had done after he did it, and “was aware that it was wrong after he did it,” consistent with his contacting the police to turn himself in. Concerning appellant’s account of the day of the stabbing, Dr. Nottingham testified: “He said that day he had been upset, ... he believed the reason he was upset was that transportation that was supposed to pick him up to take him to the clinic didn’t show up, and that’s all he could give as a reason for stabbing his brother;” and “he stated after he did it that he ran down the street, because he was ‘scared I hurt him’; that he ended up at ... Aunt B’s Kitchen where he phoned the police and surrendered.”

Dr. Seth Silverman, medical director of the MHMR Northwest Medical Clinic day hospital, and appellant’s treating psychiatrist for about one year prior to the stabbing, also testified that appellant was insane at the time of the offense. He testified that appellant was a “chronic schizophrenic, probably paranoid type,” and “one of the most severe cases”; that it was “entirely consistent” that such a person would act wrongly and realize only afterward that what he had done was wrong.

Appellant was in the day care program before Silverman arrived at the clinic, and Silverman came to know him “probably a lot better than most of the cases.” He and another psychiatrist with patient placement responsibility decided appellant would do well in the day hospital, the clinic’s most intensive program for its “highest risk” patients, and he was placed there. He was kept medicated on “pretty heavy doses” of Haldol, a tranquilizer, with Cogentin to control side effects, but even then he would sit and talk to himself. “He yells to himself ... he has lots of anger and a lot of hurt inside of him.” Silverman testified that appellant has had depression since 1975; that he hears voices that “really upset him”; that appellant “does not process pain and understand pain the same way we do,” but responds to internal stimulants, and “doesn’t process what’s going on outside of him as the rest of us do”; that he used to come in with second or third degree burns between his fingers because “he would sit there with his cigarette and forget it was burning”; and that Sil-verman worried that appellant would get a bone infection. He testified that appellant “interphases reality” on a superficial level, and “at times can happen to have coherent conversations where he understands what is going on but at the same time he’s fighting off a lot of things inside of himself _” Silverman was told [and he believed] that appellant “got angry at his mother and ripped the skin off his arm because he was so angry at her.”

Silverman testified that the caseworkers in the clinic “were absolutely frightened of him. They didn’t want to come near him, didn’t want him in the day hospital because they were scared he couldn’t obey rules”; and that “I thought we needed to try and help him as much as we could, so we tolerated some of that behavior ... because he was an unusual case ... I don’t know if it’s stupidity or bravery on our part to keep him in the day hospital.” He testified that it was entirely consistent with chronic paranoid schizophrenia that appellant might do an act and not know it was wrong, and then at some very short time afterward, realize it was wrong and possibly even apologize; that “[p]art of the illness is in-transiotic psychotic state and rarely is anybody totally psychotic all the time or totally with it all the time.”

Silverman testified that at the time of the stabbing, appellant did not understand that what he was doing was wrong, and that because of his mental disease, he could not control his actions, and even if he knew they were wrong, “I don’t believe he would be able to control his actions.” Dr. Silver-man testified that appellant “is not capable of premeditated rational thought,” and he is “pretty sure that what [appellant] did was not directed at his brother or planned to hurt him.” Silverman testified that his impressions and medical opinion were based on “an extensive history and a lot of interaction with him.... This isn’t seeing him for two weeks, three or four times, this is over a period of months to years and a lot of different settings and getting feedback from a lot of people.” Accordingly, he felt “real certain” about his diagnosis.

Appellant’s mother, Evelyn Jeanette Baker, in whose home he lived, testified that his behavior changed when he came back from military service in Korea in 1974; that he was a totally different person who “didn’t care about anything anymore, life or anything else”; that when he first came home, he had a little bag with broken pieces of glass that he said were diamonds; that when she disputed it, he went out to the street and began hitting his head on the curb; that when she once put her hand on his face and said she loved him, he told her, “don’t touch me, don’t ever touch me again”; that he would sit in his room talking to himself, but would deny it when questioned; that his eating and sleeping became erratic; that when he would go to the Austin State Hospital for two to three months, he would return seeming better, but it would be “the same thing over again shortly”; that she believed he had a mental disease or defect since returning from the service in Korea; that she believed he did not know right from wrong and was unable to conform his conduct to the law’s requirements; that the family had “tried so many times to have him put — to take him somewhere and take care of him so that he wouldn’t hurt anybody but that they would send him to Austin and keep him there for about three months, and they would let him come back home....”

Appellant’s 24 year old brother, John Wesley Baker, who also lived at the family home, recounted appellant’s threats to the family and his hitting his head against the curb. He testified that it was his opinion that his brother suffered a disease of the mind that prevented him from knowing right from wrong at the time his other brother was stabbed, and that appellant was unable at that time to conform his conduct to the law’s requirements.

Appellant’s 24 year old married sister, Jana Baker Mijares, who did not live in the family home, testified that appellant was mentally ill; that he “paces the floor and talks to himself and talks to his arm and is mean”; that she has seen him “stand real close to the fire and catch his shirt on fire,” and that his condition varies from time to time and “sometimes he seems better.” When she testified as to his mental state at the time of the stabbing, “I don’t know if he knew it was wrong or right. I don’t know,” appellant’s counsel pleaded surprise and sought to impeach her based on personal conversation shortly before; however, the court denied permission.

Roy Baker, the appellant’s 21 year old brother and the complainant, testified that when appellant came back from the service in 1975, “he wasn’t James no more”; that he “used to bang his head up against the curb”; that the family would try to care for him; that “he used to say that he was God and I couldn’t die”; that appellant told him about his conversations with “little people”; and that he would walk around the house talking to himself, screaming sometimes, throwing things, with violent spontaneous outbursts of anger. Roy Baker testified that appellant would curse and threaten to get a gun and shoot their father without any provocation, and that he was afraid of appellant “in a way,” but not afraid “in another way, no, because ... he never showed any harm to anybody. But then, on the other hand, seeing him and the way he is, it kind of had me worried.” On the day of the stabbing, Roy testified that he and appellant had been watching television during the morning; that although appellant had told their father previously that he wanted to be an only child, and “hated all the rest of the kids,” there had not been anything said that day; that appellant had no motive or reason to want to hurt him; and that he was surprised “very much so” to wake up with a knife in his stomach.

The state’s brief points out that Roy Baker, when asked if he had an opinion as to whether appellant was incapable of conforming his conduct to the law’s requirements on the date of the stabbing, answered, “No, I wouldn’t know that,” and changed his answer only after he was impeached with his contradictory pretrial affidavit. However, before that question and answer, he had answered to the contrary virtually the same question:

Q. On the date that you were woke up with a knife in your stomach, you think that because of this mental disease or defect, he was incapable of conforming his conduct to the requirements of the law?
[PROSECUTOR]: I will object.
THE COURT: If he knows, he can answer.
A. (By the witness) yes, sir.
Q. You believe he was incapable?
A. He, you know, sometimes he does realize that, you know. He can stay out of trouble. He can stay out of trouble from the law at some times and then other times, you know, he can’t.
Q. He’s not able to?
A. Yes.

In summary, two psychiatrists, appellant’s mother, and one brother all testified unequivocally, tracking the statutory elements of Penal Code sec. 8.01, that appellant was insane at the time of the offense. While the complainant Roy Baker’s testimony was equivocal as to whether appellant knew right from wrong at the time of the offense, and appellant’s sister and Mr. Olsen, the caseworker, testified that they did not know, each of these three strongly corroborated the long term nature and severity of his mental illness.

The state’s rebuttal witnesses, the four officers who together or successively had custody of appellant for the two- to three-hour period after his arrest, beginning 12 hours after the stabbing, necessarily confined their testimony to the facts of appellant’s behavior in their presence. This behavior, they uniformly testified, was normal and unremarkable.

The state suggests that the facts of our case are similar to those of Williams v. State, 653 S.W.2d 574 (Tex.App.-Tyler 1983, pet. ref’d), and likewise require af-firmance. There, as here, the state presented no medical evidence to rebut the testimony of Dr. Nottingham, who based his opinion of Williams’ insanity on a post-incident examination and a review of prior medical records. The Williams opinion noted that Dr. Nottingham consulted with treating psychiatrists as well. However, prior medical records were not introduced in Williams, and the only other defense evidence shown was the testimony of Williams’ mother that he suffered a “mental illness” since his army discharge seven years earlier, and had been “in and out” of the Veterans Administration Hospital, sometimes staying there three to four weeks. In Williams, unlike our case, the state presented the testimony of lay witnesses who had been with the defendant and observed his normal speech and demeanor on numerous occasions both in recent weeks, and in the immediate hours, before the offense. By contrast, eight years of medical records and the testimony of appellant’s clinic caseworker, his treating psychiatrist, and four family members proved undisputedly the severity of his chronic mental illness and previous psychotic conduct; two psychiatrists and three lay witnesses testified to his insanity at the time of the offense. Williams and the instant case are thus distinguished by the volume and nature of evidence showing appellant’s insanity.

The appellant’s evidence of insanity was disputed vigorously on cross-examination of the defense witnesses. Further, the state’s four witnesses offered testimony of normal behavior after the incident which the jury was entitled to consider. Accordingly, we overrule appellant’s “no evidence” arguments in grounds of error one and two. However, based on the above review and weighing of the evidence, we find that the jury’s finding that appellant was not insane was so against the great weight and preponderance of the evidence as to be manifestly unjust. Appellant’s third ground of error is sustained.

Because the matters complained of in appellant’s remaining grounds of error will necessarily recur upon any re-trial of the ease, we next consider them.

Appellant’s fourth ground of error contends that the trial court erred in refusing his requested instruction regarding intent to kill, and thus omitted the essential element of specific intent to kill from the definition of attempted murder.

Appellant requested, and the court refused, the following instruction in the charge:

You are instructed that an intent to kill is an essential element of the offense of attempt to commit murder. And also unless you find from the evidence beyond a reasonable doubt that at the time the defendant stabbed Roy Wayne Baker, if he did, the defendant had the specific intent then and there to cause the death of the said Roy Wayne Baker, or if you have a reasonable doubt as to whether he had the specific intent to so cause the death of the said Roy Wayne Baker, you cannot convict the defendant of attempted murder. In such event, you will acquit the defendant of attempted murder.

Section 19.02(a) of the Tex.Penal Code Ann. (Vernon 1974) provides that a person commits an offense if he intentionally or knowingly causes the death of an individual. Criminal attempt is defined in sec. 15.01(a) of the Penal Code as follows:

A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

The offense of attempted murder, for which appellant was indicted and tried, is created by the coupling of these two sections.

The court charged the jury on the offense of attempted murder as follows:

II.
Our law provides that a person commits murder if he intentionally or knowingly causes the death of an individual.
III.
A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends, but fails, to effect the commission of the offense intended. So, a person commits the offense of attempted murder if, with specific intent to unlawfully cause the death of another, he does some act amounting to more than mere preparation to commit murder that tends, but fails to effect the commission of such offense.
[Here were set out Penal Code sec. 6.03(a) and (b) definitions of “intentionally” and “knowingly.”]
Now, if you find from the evidence beyond a reasonable doubt that on or about April 4, 1983, in Harris County, Texas, the defendant, JAMES EARL BAKER, did then and there unlawfully attempt to cause the death of ROY WAYNE BAKER, by intentionally cutting or stabbing ROY WAYNE BAKER with a deadly weapon, namely, a knife, having intent to commit murder, then you will find the defendant guilty of attempted murder.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of attempted murder and say by your verdict not guilty. (Emphasis added).

The charge submitted clearly sets out the requisite intent to kill, and requires both a finding of an attempt by appellant to cause the death of Roy Wayne Baker and a finding that the attempt was intentionally made in order to justify a conviction. Further, attempt implies both an intent and an active effort to carry out or consummate the intent or purpose. Robinson v. State, 630 S.W.2d 394, 398 (Tex.App.-San Antonio 1982, pet. ref’d). Appellant’s fourth ground of error is overruled.

Appellant’s fifth and sixth grounds of error assert that the trial court erred (1) in allowing his extrajudicial confession to be used before the jury since the state did not prove that such statements were voluntarily made, and (2) in failing to make express findings of fact and conclusions of law on the issue of the voluntariness of appellant’s confession. Appellant also asks that this appeal be abated and remanded to the trial court to make findings of fact and conclusions of law as required under Tex.Code Crim.P.Ann. art. 38.22, sec. 6 (Vernon 1979).

Article 38.21 of the Code of Criminal Procedure provides that:

A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.

Additionally, art. 38.22, sec. 5 provides that:

Nothing in this article precludes the admission of a statement made by the accused ... that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law. (Emphasis added).

Before trial, counsel for appellant requested that any statements made by appellant at the time of his arrest be excluded as not knowingly and voluntarily made due to his insanity. When, during trial, the state called one of the arresting officers, Officer Gaines, defense counsel objected regarding the voluntariness of appellant’s anticipated statements, and the trial judge removed the jury.

Gaines testified out of the jury’s presence that he first encountered the appellant as the latter was walking toward the patrol car; that he asked appellant if he was the one who had called the police and what the problem was; that appellant answered “that he had thought he had killed his brother” when he stabbed him after an argument; and that appellant was not under arrest or in custody at this point.

On cross-examination, defense counsel questioned Officer Gaines as to appellant’s appearance and demeanor at this time. Gaines testified that the appellant appeared nervous, that he appeared to understand what he was saying, and that he, Gaines, observed nothing that would lead him to form an opinion that appellant was not of sound mind. Defense counsel renewed his objection, which was overruled by the court with the reservation that the state question Gaines only as to what the appellant said at this point and avoid any testimony about events subsequent to his arrest.

Art. 38.22, sec. 5 specifically excludes from its provisions “a statement that does not stem from custodial interrogation.” Lindley v. State, 635 S.W.2d 541, 544 (Tex.Crim.App.1982); May v. State, 618 S.W.2d 333, 348 (Tex.Crim.App.1981). Appellant’s statement to the arresting officers was not the product of a “custodial interrogation,” as that term is defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because he was not under arrest or in custody. The two questions the officers directed to appellant were not words they should have known were reasonably likely to elicit an incriminating response.

While appellant’s mental state is relevant to the jury’s determination of the accuracy of his pre-arrest admission, it is not determinative of its admissibility. Appellant may have been mentally disturbed at the time of his admission or confession, but the compulsion influencing his admission was internal and not that of custodial interrogation. Tex.Code Crim.P.Ann. art. 38.21 (Vernon 1979); Schuessler, at 647 S.W.2d at 747.

Appellant’s statement does not come within the ambit of art. 38.22, and there was no need for the court to file findings of fact and conclusions of law respecting the voluntariness of appellant’s confession as mandated by that article’s sec. 6. No abatement and remand to the trial court for findings is necessary. Appellant’s fifth and sixth grounds of error are overruled.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: FENDER, Chief Justice.

license: Public Domain

text:
    Aubrey Joyce ESTES, Jr., aka Jay Davis, Appellant, v. Marie Marsh Degler McKinney WILSON, Appellee.
    No. 2-84-019-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 27, 1984.

      Royce Coleman, Denton, for appellant.
    Michael E. Robinson, Dallas, for appel-lee.
    Before FENDER, C.J., and ASHWORTH and BURDOCK, JJ.
   OPINION

FENDER, Chief Justice.

The judgment appealed in this case awarded possession, title, reimbursement of taxes, and lost rents to appellee, Marie Marsh Degler McKinney Wilson, the lessor under a lease agreement with option to purchase. Appellant, Aubrey Joyce Estes, Jr., aka Jay Davis, the lessee and plaintiff below, was denied any recovery in his asserted causes of action for declaratory judgment, specific performance of the option to purchase provisions of the agreement, and attorney’s fees.

We affirm.

Appellant’s first four points of error are directed at the trial court’s action in “forfeiting Appellant’s interest in” the lease-purchase agreement without giving him the opportunity to cure any default in his performance under the agreement, for forfeiting his interest in the agreement for failure to pay taxes and failure to keep insurance with the same carrier previously used by appellee-lessor, and for forfeiting his interest in the agreement by sub-leasing without consent of appellee. Points of error four, five, six and seven attack the award of lost rents to appellee and denial of “affirmative relief” and attorney’s fees to appellant.

On May 9, 1974, appellant (sometimes referred to herein as “Estes”) and appellee, (sometimes referred to as “Wilson”) executed an instrument on a printed form for lease which contained an option to purchase. This instrument will be called the “lease-purchase agreement.” It is copied in relevant part below:

Lessor hereby declares that there is no indebtedness or liens of any kind on said property and that she is the sole owner of said property and further agrees not to incur any debt on said property during the terms of this lease-purchase option. Lessor also declares that there are no taxes of any kind now due on said property.
Lessee agrees carry (sic) the same Insurance on said Property meaning same Company and same Coverage until a Purchase Option has been exercised.
Lessee agrees that if rents are not paid on or before the 15th of each Month beginning the 15th day of May, 1974 this agreement shall become null and void and lessee will have five days to vacate said Property. If this agreement does become null and void there will be no liability each party to the other.
LESSEE is also tendering $4,000.00, receipt of which is hereby acknowledged, for an option to purchase the location for the price of $25,000.00 with all option money and all rent being credited to the purchase. The lease shall be for the term of fifteen (15) years beginning the 15th day of May, A.D. 1974, and ending the 15th day of May, 1989, to be occupied [illegible] and not otherwise, Lessee [illegible] therefor the sum of $200.69 per month as rent; that all rent paid shall be, at any time the option is exercised, credited to principal and interest payments. LESSEE shall pay all taxes and insurance. All Taxes and Insurance shall be prorated from May 15, 1974.
If Purchase Option is excercised (sic) said Note shall bear an 8% rate per an-num.
LESSEE shall have the right to sell, transfer or convey this lease purchase option at anytime during the term of this agreement if he so desires, said transfer must meet with Lessor’s approval.

According to Wilson, this remarkable instrument was devised so that appellant’s name would not appear of record as owner of the property, where it might aggravate the problems which Estes was having with the I.R.S.

In his brief, appellant admits that he “sublet the premises, that a small amount of taxes did not get timely paid and that insurance was always in force but not with the same insurance company formerly insuring the Defendant.” As to the subletting however, appellant contends that ap-pellee waived her right to complain. The claimed waiver is based upon the fact that on June 24, 1980, she wrote him a letter stating that he had rendered the contract “Null and Void” by not paying rent on time, subletting the premises and failing to keep the premises in good repair, but that she continued to accept payments until June of 1982.

On May 13, 1981, Wilson filed suit in the district court asking for declaratory judgment and “voiding” of the lease-agreement. That suit was dismissed without prejudice on May 10, 1982, the day set for trial, upon motion of Wilson. On September 7, 1982, Wilson’s attorney wrote Estes advising that the lease was terminated due to his failure to pay taxes on the premises and to supply insurance coverage as agreed. The present suit was brought by Estes on October 4, 1982.

In his amended petition, Estes alleged that he was and had been “ready, willing and able to comply with whatever the terms of the ‘AGREEMENT’ are, whether it be his interpretation or some other interpretation.” In this regard he prayed that his option be enforced and that Wilson be required to convey and that he, Estes, be required to give “an appropriate note secured by Deed of Trust.” Additionally, he pled a cause of action for damages due to wrongful prosecution. That cause of action went out of the case by directed verdict, from which action of the court, no appeal has been taken.

With regard to appellant’s claim of waiver on Wilson’s part, the jury found that he sublet the property to tenants without Wilson’s consent, and further found that Wilson did not waive her rights to require approval prior to such subletting. In spite of such findings, appellant contends that waiver occurred as a matter of law.

It has been established by Texas law that waiver is a question of fact for the trier of fact to determine. See Andrews v. Powell, 242 S.W.2d 656; Marsalis v. Thomas, 13 Tex.Civ.App. 54, 35 S.W. 795 (Tex.Civ.App.1896, writ ref’d); Lewis v. Smith, 198 S.W.2d 598 (Tex.Civ.App.—Fort Worth 1946, writ dism’d); Carlisle v. MacDonald, 200 S.W.2d 436 (Tex.Civ.App.—Texarkana 1947), rev’d on other grounds, 146 Tex. 206, 206 S.W.2d 224. It has been held that waiver must be clearly proven and that the proof must amount to more than a scintilla of evidence, surmise or suspicion. Jordan v. City of Beaumont, 337 S.W.2d 115 (Tex.Civ.App.—Beaumont 1960, writ ref’d n.r. e.); The Praetorians v. Strickland, 66 S.W.2d 686 (Tex.Comm’n App.1933, judgment adopted).

The evidence established that, despite acceptance of payments that were due, Wilson continued to take steps to evict appellant, thus making it clear that acceptance of any payments was not to be construed as a waiver of her rights. The Texas courts have long held that the accepted definition of waiver is an intentional relinquishment or surrender of a right that is at the time known to the party making it. The Praetorians v. Strickland, supra; Moore v. Price, 103 S.W. 234 (Tex.Civ.App.1907, writ ref’d n.r.e.).

The court stated in Ferrantello v. Paymaster Feed Mills, 336 S.W.2d 644 (Tex.Civ.App.—Dallas 1960, writ ref’d n.r.e.): “Intention is a necessary element of waiver as distinguished from estoppel, ...”

Wilson testified that at no time did she intend to waive any of her rights in regard to the real property and lease agreement. By appellant’s own admission in his pleadings, Wilson continuously complained of the subletting and continuously notified Appellant of her objections. It is an established rule of law that to prove an implied waiver of a legal right, there must be a clear, unequivocal and decisive act of a party showing a purpose or acts which amount to an estoppel on his part. Corrin v. Slagle, 300 S.W.2d 657 (Tex.Civ.App.-Port Worth 1957, writ ref’d n.r.e.).

The cases cited by appellant for the proposition that “waiver” occurred as a matter of law are all clearly distinguishable from the case at bar. Apperson v. Shofner, 351 S.W.2d 367 (Tex.Civ.App.—Waco 1961, no writ), for example, is a suit between a lessee and his sublessor in which the landlord testified that he orally waived the consent requirement when the subles-sor took the property.

It has been held that a material fact issue is created where a landlord knows of and accepts payments after a sublease has occurred, but it is imminently clear that this is a fact question, which was resolved by the jury in Wilson’s favor.

“It is well settled, and appellees agree, that the rights accruing to a lessor under the provisions of Article 5287 may be waived. Nelson v. Seidel, (Tex.Civ.App.), 328 S.W.2d 805, (Refused, NRE), and cases cited therein. The question which then presents itself is whether or not appellants have presented sufficient evidence to raise an issue of a material fact. ... In our opinion this raises a fact issue as to whether or not the executors relinquished their right to cancel the lease contracts. This is an issue which should be passed upon by a trier of the facts.” Bradley v. Gray’s Estate, 385 S.W.2d 681 (Tex.Civ.App.-Amarillo 1964, writ ref d n.r.e.).

Regarding the admitted non-payment of taxes and the failure to keep the premises insured by the same insurance company, there were no special issues submitted to the jury, however the trial court ruled that Wilson recover the sum of $379.11 for taxes which Estes should have paid.

Appellant argues that the trial court could not properly find a forfeiture of the lease because of his failure to pay taxes and to retain the same insurance with the same insurance carrier. He admits that some taxes were not paid and that, although he kept the premises properly insured, it was impossible to retain the same carrier since that company declined to rein-sure the premises at the end of the policy term. Appellant testified that Wilson caused the insurer to cancel coverage and Wilson testified that it was appellant’s fault for letting the premises become run down and vandalized. It was further claimed that Wilson failed to send tax statements to Estes and that his failure to pay taxes was unwitting. There was no submission of jury issues bearing upon impossibility of performance or fault for noncompliance with such requirements of the lease-purchase agreement.

In any event, appellant claims that such requirements, if breached, were covenants rather than conditions. He cites Hearne v. Bradshaw, 158 Tex. 453, 312 S.W.2d 948 (1958), in which it was said “provisions obligating respondents to maintain the property, pay the taxes and insurance, and furnish food and clothing to the grantor were covenants and not conditions. The remedy for their breach is an action for damages, and petitioners were not entitled to recover the estate conveyed to respondents by deed.” The Heame case, however, involves a very distinguishable set of circumstances. In Heame the real property, the subject of the suit, had already been transferred by a warranty deed and the court held that damages were available and the interpretation of the “terms” was held against the grantor.

Conditions subsequent are not favored by the courts, and the promise or obligation of the grantee will be construed as a covenant unless an intention to create a conditional estate is clearly and unequivocally revealed by the language of the instrument. Hearne v. Bradshaw, Id., 951.

A lease-purchase agreement creates an entirely different situation.

Option contracts are generally construed against the optionee because they are for the benefit of the optionee. Sinclair Refining Co. v. Allbritton, 218 S.W.2d 185 (Tex.1949).
In determining whether a condition in a deed is a condition precedent or a condition subsequent, the general rule that a conveyance should be interpreted so as to give effect to the intention of the parties is applicable. City of Dallas v. Etheridge, 253 S.W.2d 640, 642 (Tex.1952).

Here we are faced with a lease with an option to purchase, which clearly makes certain requirements preconditions. The agreement states:

Lessee agrees to carry the same insurance on said Property meaning same company and same coverage until a Purchase Option has been exercised.

The phrase “until a Purchase Option has been exercised” is drafted as a condition precedent. If it is not enforced as a condition precedent, it would be ineffective since “damages” could never properly remedy the violation of the clause.

Although appellant urges that the agreement’s provisions were ambiguous, there were no special issues submitted to the jury requesting a finding as to the true meaning of the instrument. It appears that the trial court properly admitted evidence of the circumstances surrounding the making of the agreement, the intent of the parties, their understanding of the agreement and their construction of the provisions for payment under the option clause and other rights provided in the agreement. Martin v. Davis Constructors, Inc., 552 S.W.2d 873, 878 (Tex.Civ.App.-San Antonio 1977, writ ref d n.r.e.). The ambiguous intent of the parties was a matter that is properly for the jury to resolve. Trinity Universal Insurance Co. v. Ponsford Brothers, 423 S.W.2d 571, 575 (Tex.1968); Corpus Christi National Bank v. Lowry, 662 S.W.2d 402, 405 (Tex.App.-Corpus Christi 1983, no writ).

By not submitting special issues for the jury’s determination appellant left the ambiguousness of the agreement to be resolved by the trial court, and the trial court was not requested to file its statement of facts and conclusions of law. It is well settled that absent findings of fact and conclusions of law, where said findings are necessary to determine on what basis the trial court rendered its judgment, the Court of Appeals is obligated to consider only the evidence most favorable to the issue and will disregard entirely that which is opposed to it or contradictory in nature. Renfro Drug Co. v. Lewis, 235 S.W.2d 609 (Tex.1950). The court should imply all necessary fact findings to support the judgment, thereby providing the broadest possible base of support for the judgment on appeal. Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365 (Tex.1945); Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301-302 (Tex.1963).

Applying these rules, we cannot hold the judgment of the trial court terminating appellant’s interest in the lease was not supported by tenable implied findings and conclusions. Appellant’s points of error one, two and three are overruled.

Appellant’s points of error four and five, which are briefed together are here set out:

POINT OF ERROR FOUR
The trial court erred in divesting plaintiff of possession and his interest in the real property without giving plaintiff the opportunity to cure any default in plaintiff’s performance under the “lease-purchase agreement” of May 9, 1974.
POINT OF ERROR FIVE
The trial court erred in rendering a money judgment against plaintiff for the amount of $2,408.20 in addition to divesting plaintiff of all of his interest in the real property where there was no finding of a deficiency.

Appellant reasons that (1) a holder of a delinquent installment note must present the note and demand payment prior to its acceleration and (2) under a deed of trust, notice must afford an opportunity to cure a claimed default; therefore this Court should also give him the opportunity to pay Wilson “prior to losing all of his interest in his real estate.” We are cited to no authority for such proposition nor do we know of any. Accordingly, point of error four is overruled.

Appellant next states that the judgment in the amount of $2,408.20 “is in the nature of a deficiency judgment and generally the Courts of Appeals have held that before an individual will be liable on a deficiency, there must first be some action which conclusively establishes the loss.” He claims that there was no evidence of Wilson’s loss “or even the value of the real estate.”

The cases cited to us regarding deficiency judgments deal with deficiencies in the usual sense, that is, the amount remaining unpaid on a debt after forced sale of collateral and credit of the proceeds to the original debt. They are not in point. Regarding the claim that there was no evidence of Wilson’s loss, the record shows that she was deprived of the use and occupancy of the premises and the agreed monthly rentals during such period was $200.69, which the jury found to be $2,408.28. Appellants’ point of error five is overruled.

Appellant’s points of error six and seven are here set out:

POINT OF ERROR SIX
The trial court erred in failing to award plaintiff affirmative relief on his pleadings and prayers for relief.
POINT OF ERROR SEVEN
The trial court erred in failing to award plaintiff his attorney’s fees.

It is apparent from his brief that by “affirmative relief” appellant means a judgment spelling out the rights of the parties. From his amended petition we quote the following:

“XII
“Plaintiff furthermore invokes the powers of the trial court to properly adjudicate Plaintiff’s and Defendant’s rights and privileges in terms of the Declaratory Judgments Act of the State of Texas and in respect thereto, Plaintiff is and has been always ready, willing and able to comply with whatever the terms of the ‘AGREEMENT’ are, whether it be his interpretation or some other interpretation. Plaintiff would show that it has at all times been futile to tender money to Defendant as her attorneys have formally given written notice that no further payments or monies will be accepted.”

The following is the pertinent parts of appellant’s prayer as set out in his petition:

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that after trial to a jury and any fact issues resolved that Plaintiff have the following relief:
(1) That Plaintiff Estes’ option be enforced with Defendant Wilson being ordered to sign and deliver a General Warranty Deed and if appropriate, an appropriate note secured by Deed of Trust be given by Plaintiff, and/or;
(2) That specific performance of the “AGREEMENT” be granted;
(3) That the Court invoke its equitable powers pursuant to the Declaratory Judgments Act and decree whatever relief may be appropriate and equitable;...

In its judgment, the trial court disposed of all of appellant’s allegations and prayers for relief by its judgment that “Plaintiff/Counter Defendant take nothing by his action herein.”

This Court was faced with a similar situation in Downe v. Askey, 529 S.W.2d 121 (Tex.Civ.App.-Fort Worth 1975, no writ). In that case, in a bench trial, the makers of a note brought an action seeking declaration of their rights under a prepayment clause. The trial court did not write a judgment which declared the parties’ rights, as such, but after entering its findings of fact and conclusions of law, rendered a judgment that the plaintiffs take nothing by their suit. The effect of such judgment was thus to deny the plaintiff the particular construction that he asked be given to the provisions of the note.

In Downe we wrote:

“We are convinced that it would have been better practice if the trial court had drawn the judgment in the form of a declaratory judgment undertaking to declare the rights of the parties with reference to prepayment of the principal of the note. The parties would then have had the judgment as a guide to go by in determining their rights.
“We have found no Texas case dealing with the question of how the parties are affected when the trial court renders a take nothing judgment in a suit where the relief sought is declaratory relief. We have, however, found out of state cases on the subject.
“The law appears to be that since no technical form is prescribed for the declaration of rights in a declaratory judgment action, the form of a judgment rendered in such an action is sufficient if the rights of the parties that are sought in the suit to be ascertained can be ascertained from the judgment rendered when considered in view of the controversy involved along with the findings of fact and conclusions of law filed in the case by the trial court.” (Citations omitted)

We then held:

“The decree rendered by the trial court in this case, when considered in view of the controversy involved, along with the trial court’s findings of fact and conclusions of law, fully declare the rights of the parties on the issues involved.”

We have found no authority on this point since our decision in Downe. Accordingly we hold that the take nothing judgment rendered in this case fully determined that appellant had no enforceable rights to be declared. Point of error six is overruled.

Point of error seven is also overruled inasmuch as we are neither cited to any authority nor do we know of any which requires recovery of attorney fees by the party losing the litigation.

We now address appellee’s sole cross point in which it is urged that the trial court should have awarded her reasonable attorney’s fees for which she pled, proved and requested judgment under the provisions of TEX.REV.CIV.STAT.ANN. art 2226, (Vernon Supp.1984), which is here copied in pertinent parts:

“Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded upon a sworn account or accounts, or suits founded on oral or written contracts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, payment for the just amount owing has not been tendered, the claimant may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees.... This Act shall be liberally construed to promote its underlying purposes.”

Appellee’s claim is, that even though the language of the statute in part seems to be permissive only, its main thrust is mandatory. We believe appellee is correct in such assertion, for, in the case she cites, the Austin Court wrote:

“Our view is that art. 2226 authorizes the party to seek reasonable attorneys fees in the proper case, and if the party makes his proof, then this court shall enter judgment for attorney’s fees.” Davidson v. Suber, 553 S.W.2d 430 (Tex.Civ.App.-Austin 1977, no writ). See also Jones v. Kelley, 614 S.W.2d 95 (Tex.1981). Accordingly we hold that appellee is entitled to her attorney’s fees, and we sustain her cross point.

The judgment of the trial court is reformed to provide for attorney’s fees in the amount found by the jury, and as reformed, is affirmed.


author: HUGHES, Justice.

text:
    Barbara E. IRVING, Appellant, v. Norman R. IRVING, Appellee.
    No. 2-84-055-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 9, 1985.

      Simon, Peebles, Haskell, Gardner & Has-kell and Anne Gardner, Fort Worth, Rodney R. Elkins, P.C., Dallas, for appellant.
    Alley & Alley, and Richard Alley, Fort Worth, for appellee.
    Before FENDER, C.J., and HUGHES and JORDAN, JJ.
   OPINION

HUGHES, Justice.

Barbara E. Irving has appealed the portion of the divorce judgment of the 325th District Court of Tarrant County, granting managing conservatorship of her two children to her husband, Norman R. Irving. The basis of her appeal is that the Texas courts lack jurisdiction over this suit affecting the parent-child relationship and that the judgment is void. She further contends that a judgment of the Circuit Court of Cook County, Illinois, granting managing conservatorship to her, should be given full faith and credit by Texas courts.

We reverse the judgment and remand for a determination of reasonable attorney’s fees.

In Februaxy of 1981, the appellant (wife) and appellee (husband) were living in Illinois with their two children when they separated. In March of 1981, she took the two children to her mother’s home in Mississippi for medical reasons and for a temporary stay. Appellant then returned to Illinois without the children. On April 6, the ap-pellee moved to Texas. At the beginning of the summer, the appellant decided to let the children continue to remain with their grandmother through the summer vacation because one child was still recuperating from surgery and because the children had traditionally spent their summers with their grandmother.

On August 29, 1981, appellee went from Texas to Mississippi and took the children from the maternal grandmother under the pretense that he was taking them shopping. He immediately returned to Texas with the children and, four days later, filed suit in Tarrant County for divorce and custody of the children. At that time, appellee had been residing in Texas for four months and 27 days. Seven days after the appellee filed suit in Texas, appellant filed suit in Illinois for divorce and custody.

On January 11, 1982, the Texas court granted divorce and awarded custody to appellee. The appellant did not appear or file any answers in the case. On June 9, 1982, the Illinois court granted divorce and awarded custody to appellant. On July 9, 1982, appellant filed for writ of error in this court requesting that the Illinois decree be given full faith and credit and that the Texas decree be voided. On October 28, 1982, this court reversed and remanded the Texas divorce decree on an agreed motion of the parties.

On November 8, 1982, appellant filed a petition for writ of habeas corpus in the trial court which was denied as was her motion for rehearing on her petition for writ of habeas corpus. Appellant then filed a special appearance, a motion to dismiss, a plea in bar, a plea in abatement, and respondent’s original answer. On November 17,1982, the master’s recommendation that the special appearance be granted was presented to the judge. He signed it below the line “APPROVED AND IT IS SO ORDERED.” The judge later said that this was not an “order” and went to trial over appellant’s objections.

On December 10, 1982, appellee filed his 3rd amended petition for divorce and custody. Appellant filed a plea in abatement, a motion for continuance, and her first amended answer. On December 14, 1983, appellant filed another motion for continuance. On December 19, 1983, the motion for continuance was overruled, the special appearance was disallowed, and the court proceeded with trial.

On February 6, 1984, after a trial to the court, the judge found in the judgment that Texas had original jurisdiction of the children on September 2, 1981, when suit was commenced. He further found that the Illinois court did not have jurisdiction of the two children when suit was filed in that state on September 9, 1981, because the children were not residents of Illinois and had not lived there for over six months prior to the time suit was filed in Texas and, therefore, that the Illinois decree was not entitled to full faith and credit. The appellee was then appointed managing conservator of the children and the appellant was appointed possessory conservator with limited visitation privileges. The appellant was further ordered to pay $250.00 each month in child support.

Appellant contends in her fourth point of error that Texas does not have jurisdiction over the children because Texas was not the children’s home state at the time suit was filed. We agree.

Prior to 1979, Texas common law allowed Texas courts to assume subject matter jurisdiction over a suit affecting the parent-child relationship if (1) Texas was the child’s domicile or (2) if the child was physically present in Texas. Ex Parte Birmingham, 150 Tex. 595, 244 S.W.2d 977, 979 (1952); Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 878 (1948); Thomlow v. Thomlow, 576 S.W.2d 697, 699-700 (Tex.Civ.App.-Corpus Christi 1979, no writ), cert. denied, 445 U.S. 949, 100 S.Ct. 1596, 63 L.Ed.2d 784 (1980); Davis v. Spraggins, 449 S.W.2d 80, 82 (Tex.Civ.App.-Amarillo 1969, writ ref’d n.r.e.). In 1979, however, the legislature overruled these cases by enacting TEX.FAM.CODE ANN. sec. 11.-045(b) (Vernon Supp.1979) which reads:

The physical presence in this state of the child or of the child and one of the contestants is alone insufficient to confer jurisdiction to the court to make a determination under this subtitle.

This language was repeated in TEX.FAM. CODE ANN. sec. 11.53(b) (Vernon Supp. • 1984), which is patterned after the Uniform Child Custody Jurisdiction Act and which was enacted to replace sec. 11.045. Therefore, appellee cannot base his assertion that Texas has jurisdiction of this case on the physical presence of the children in Texas.

Next, we must answer the question of the children’s domicile. Section 11.53(a) (Vernon Supp.1984) confers jurisdiction on whichever state is the child’s home state or whichever state had been the child’s home state within six months prior to filing suit if the child is absent from that state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in the child’s home state. The prior jurisdiction statute, sec. 11.045, was slightly broader in that it conferred jurisdiction on the state of the child’s principal residence rather than the child’s home state. Since sec. 11.53 became effective on September 1, 1983, before the trial began, we will apply it in deciding the question of jurisdiction. See Texas Mexican Ry. v. Jarvis, 80 Tex. 456, 15 S.W. 1089, 1091 (1891). Regardless of which is applied, however, Texas does not have jurisdiction of this case.

Since jurisdiction rests with the home state of the children involved, we must determine whether Illinois or Texas is their home state. Appellee claims that Texas is the home state because the children were brought here four days before suit was commenced. Appellant contends that Illinois is the home state based on the lifelong residence of the children in that state. The question raised is whether either parent, prior to the appointment of a managing conservator, is entitled to unilaterally determine the home state of the children.

TEX.FAM.CODE ANN. sec. 12.04(1) (Vernon Supp.1984) says that “the right to have physical possession of the child and to establish its legal domicile” belongs to “the parent” of the child, but the statute fails to distinguish which parent has that right absent a court order or agreement of the parties.

The only case on point is Thomlow, 576 S.W.2d 697. The Court of Appeals in that case ruled that the father could transport the children to Texas against the wishes of the mother, absent a valid custody award, and that Texas thereby acquired jurisdiction. Id. at 700. There is no authority to contradict the rule allowing the father to take physical possession of the children and to transport them out of state without a custody award or agreement. However, since the enactment of TEX.FAM.CODE ANN. secs. 11.045 (Vernon Supp.1979) and 11.53 (Vernon Supp.1984), doing so does not affect their domicile. The childrens’ domicile (or home state) must still be governed by the U.C.C.J.A. as set out in the Texas Family Code.

We observe that one of the general purposes of the Uniform Child Custody Jurisdiction Act is to:

“[Ajssure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available....”

TEX.FAM.CODE ANN. see. 11.51(a)(3) (Vernon Supp.1984).

Based on the fact that the children in controversy were brought to Texas only four days before suit was filed, we hold that they did not have a sufficient connection with Texas to make it their home state. Their physical presence here is not enough, by itself, to establish jurisdiction. TEX.FAM.CODE ANN. sec. 11.-53(b) (Vernon Supp.1984). Since the children have spent most of their lives in Illinois, prior to commencement of this suit, it is the state to which they have the closest connection and in which evidence concerning their care, protection, training and personal relationships is most readily available. During the three-year duration of this legal battle, the children have undoubtedly developed roots in Texas. However, we cannot allow the appellee to bootstrap his way into a Texas court based on relationships developed after suit was commenced.

The appellant properly raised and preserved her objection by filing a special appearance under TEX.R.CIV.P. 120a, prior to the filing of any other plea. We hold that the trial court should have sustained appellant’s objection to that court’s jurisdiction.

We sustain the appellant’s fourth point of error.

The appellant’s first three points of error assert that the trial court’s finding that the Illinois court did not have jurisdiction was an abuse of discretion because (1) it denied appellant her constitutional right to full faith and credit for the Illinois judgment, (2) was not supported by any evidence, and (3) was against the great weight and preponderance of the evidence. We agree.

For reasons already discussed in the previous point of error, Illinois was the domicile of the children in question and, therefore, had jurisdiction to render judgment concerning custody. The children’s absence from that state at the time this suit was commenced did not, by itself, deprive Illinois of jurisdiction. TEX.FAM.CODE ANN. sec. 11.53(c) (Vernon Supp.1984).

We hold that the Illinois decree was valid and should have been given full faith and credit in the courts of Texas under TEX. FAM.CODE ANN. sec. 11.63 (Vernon Supp.1984). We sustain the appellant’s first, second, and third points of error.

Appellant’s points of error 5 through 11 raise several issues of trial error. Since this case is being reversed for want of jurisdiction, we do not think it is necessary to decide the questions presented by those points of error.

Appellant’s points of error 12 and 13 assert that the trial court erred by refusing to award attorneys’ fees and court costs to appellant and also by awarding attorneys’ fees to appellee. We agree.

Texas courts have held that attorneys’ fees incurred by a parent in the course of a custody suit are “necessaries” rendered for the benefit of the children. Perkins v. Freeman, 501 S.W.2d 424, 430 (Tex.Civ.App.-Beaumont 1973), rev’d on other grounds, 518 S.W.2d 532 (Tex.1974); Noves v. Jack, 443 S.W.2d 89, 94 (Tex.Civ.App.-Beaumont 1969, writ ref’d n.r.e.); Schwartz v. Jacob, 394 S.W.2d 15, 21 (Tex.Civ.App.-Houston 1965, writ ref’d n.r.e.). Since we have held that Texas does not have jurisdiction of this case, it follows that the appellant was the party who was put to undue expense to pursue this litigation. Accordingly, we sustain points of error 12 and 13, and remand this case back to the trial court for the limited purpose of determining reasonable attorney’s fees and court costs to be awarded appellant.

Reversed and remanded.


text:
    James A. McCLENDON, Appellant, v. FARMERS TEXAS COUNTY MUTUAL INS. CO., Appellee.
    No. 2-84-107-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 9, 1985.

      Leeper & Priddy and Timothy G. Chova-nec, Fort Worth, for appellant.
    McBryde & Green and John McBryde, Fort Worth, for appellee.
    Before FENDER, C.J., and HUGHES and JORDAN, JJ.
   OPINION

HUGHES, Justice.

James A. McClendon has appealed the default judgment taken against him by Farmers Texas County Mutual Insurance Company. McClendon, the plaintiff and counter defendant, has sued Farmers for refusing to pay him under an insurance policy which he alleged covered the loss of his automobile due to theft. He also alleged practices by Farmers that were in violation of TEX.INS.CODE ANN. art. 21.-21 (Vernon 1981), and TEX.BUS. & COM. CODE ANN. sec. 17.46 (Vernon Supp.1984) and which would entitle him to triple damages and attorney’s fees under such codes.

We affirm.

Chronology of the cause before us reflects that:

November 30, 1983 McClendon filed his suit against Farmers.

December 14, 1983 Farmers filed its answer and counterclaim; on the same day it filed and served its notice of intent to take oral deposition of the plaintiff. (The notice directed McClendon to appear for deposition at 9:00 a.m., December 27, 1983.)

December 27, 1983 McClendon did not appear. Later, McClendon’s attorney informed Farmers’ attorney that McClen-don would be available to be deposed on January 3, 1984.

December 30, 1983 McClendon’s attorney executed a written waiver of the 10-day notice required.

January 3, 1984 Waiver was filed at 10:12 a.m. (after McClendon’s attorney told Farmers’ attorney that McClendon was not going to show.)

January 6, 1984 Farmers filed its motion for default judgment.

January 27, 1984 Motion was heard on January 27, 1984 and the judgment was signed.

February 27, 1984 McClendon filed motion for new trial.

April 5, 1984 It was denied.

Against this chronological background we have to consider seven points of error.

The first two points of error assert that the default judgment is void (1) because it is a sanction imposed for McClen-don’s failure to attend two invalid notice depositions and (2) the District Court does not have the authority to render such a judgment against a party plaintiff. McClendon asserts that both of the notices given on the depositions were served before Farmers’ appearance day and were, therefore, invalid. Further, he avers that such notices were filed before McClendon’s appearance day on the counterclaim and were also invalid for that reason.

Actually, Farmers’ answer filed on December 14, some 13 days before setting of the deposition, constituted by acceleration his appearance day. TEX.R.CIV.P. 121. We hold that an “appearance day” is not required for McClendon on the counterclaim because he is not required to file an answer to same as Farmers’ counterclaim arose out of the same transaction alleged in McClendon’s original petition. Trotter v. City of Wichita Falls, 623 S.W.2d 160 (Tex.App.-Fort Worth 1981, no writ).

It is obvious that the waiver of the 10-day notice requirement was filed in the court papers an hour and twelve minutes after the time specified in the notice for the January 3, 1984 date for McClendon to appear and be deposed. This is urged by McClendon as ineffective because it was not filed before the time scheduled for the deposition and he cites Hough v. Johnson, 456 S.W.2d 775 (Tex.Civ.App.-Austin 1970, writ ref’d n.r.e.) as authority therefor. The Hough case involved a 3-day period of notice on an oral deposition which actually entailed only three hours from service on the parties to be deposed to the time set for deposing. Id. at 777. In Hough, as in this case, there had been a previous setting for deposition, with oral waiver of the 10 days, which had been ignored by those to be deposed. Id. at 777. Also in Hough there was an oral agreement to waive the 10 days and a stipulation entered on the motion for judgment which agreed that the deposition subpoenas were properly issued by a notary public who had the authority to issue them and that the commission to take same was properly issued. No written waiver of 10 days notice was in evidence. Id. at 778.

The appellate court in Hough noted: “It was upon this record that the Trial Court imposed upon appellants the most severe punishment authorized by Rule 215a(c).” Id. at 777. We, likewise, are called upon in this case to pass upon the same harsh result. Here, however, there is a written waiver of the 10-day period, executed 4 days before deposition date; filed an hour and twelve minutes after the time set for deposing; in the possession of the attorney for Farmers when the attorney for McClen-don appeared at the time and place set for the deposition with the word that his client was not going to show.

TEX.R.CIV.P. 11, upon which McClendon relies provides:

No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

We note that while rule 11 provides for filing of a written agreement as a prerequisite of enforcement, it does not say when it should be filed but it does provide where an oral stipulation can be made: “in open court”. The first “open court” reflected in the record before us was January 27, 1984, 24 days after the written waiver was filed. We hold that the notices with the waiver in question were valid and effective and overrule points of error one and two. In doing so, we also note that McClendon’s contention of invalidity of notice was urged for the first time on his motion for new trial filed February 27, 1984.

Point of error three questions the authority of the District Court to render a default judgment against a party plaintiff, even when he is also a counter defendant. McClendon’s argument centers on the application of five TEX.R.CIV.P. 215a(c) sanctions that may be applied against a party for failure to attend the taking of his own oral deposition. He claims that, logically, not all of the sanctions can be imposed against both parties plaintiff and parties defendant. The sanctions provided by rule 215a(c) are:

(c) Failure of Party or Witness to Attend. If a party or an officer or managing agent of a party, except for good cause shown, fails to appear before the officer who is to take his oral deposition or his answers to written questions or cross-questions under these rules, after proper service of subpoena or notice as provided in Rule 201, the court in which the action is pending on motion and notice may strike out all or any part of the pleading of that party, or dismiss the action or proceeding or any part thereof, or direct that such party shall not be permitted to present his grounds for relief or his defense, or enter a judgment by default against that party, or make such other order with respect thereto as may be just.
Any witness who, except for good cause shown, fails to appear before the officer who is to take his oral deposition or answers to written questions or cross-questions under these rules, after proper service of subpoena, may be punished as for contempt of the court in which the action is pending or of the district court in the district in which such deposition or answers are to be taken, and an attachment may issue out of such court for such witness, as in ordinary civil cases.

Specifically he asserts that dismissing an action or proceeding against a defendant for failure to appear at his own deposition would be supercilious in that it would reward him for his own refusal to cooperate by actually relieving him of the suit against him.

By the same logic, McClendon reasons that a default judgment cannot be taken against a plaintiff. He states that he cannot find any reference in the Texas Rules of Civil Procedure to default judgments being allowed against plaintiffs. He also asserts his inability to find any cases wherein a default judgment was awarded against a plaintiff in Texas.

Farmers, for the most part, has cited cases from jurisdictions other than Texas where default judgments were upheld against parties plaintiff. Both parties in this case appear to take comfort in the same two Texas cases. Each contends that such cases support their respective positions.

The earliest of such cases is one where the trial court dismissed with prejudice the plaintiff’s causes of action because his answers to interrogations were “wholly deficient in that they were signed by the attorney of record” “contrary to rule 168”. Coupled with this, the plaintiff had failed to amend his pleadings as ordered by the court. It was held by the appellate court that the trial court could not, under rule 170(c), dismiss with prejudice “without any further authorization for the attachment of prejudice.” The opinion further stated:

We can conceive of a situation in which the refusal on the part of the plaintiff to comply with a discovery order is sufficiently blatant and unjustified as to call for a judgment on the merits against that party. This action is indicated by the provisions of the rule allowing a default judgment (emphasis ours) against the disobedient party_ However, when such a judgment on the merits is undertaken, it must be clearly characterized as such. Under these circumstances the court is empowered to grant a take-nothing judgment against the plaintiff. Obviously, pursuant to rule 170, only the most aggravating of circumstances would warrant a default judgment on the merits.”

Phillips v. Vinson Supply Co., 581 S.W.2d 789, 791-92 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ).

A later case in the same year upheld a dismissal with prejudice because of the failure of the plaintiff to produce documents which were ordered produced by the trial court. Bottinelli v. Robinson, 594 S.W.2d 112 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ). Although Lueg v. Tewell, 572 S.W.2d 97 (Tex.Civ.App.-Corpus Christi 1978, no writ), agrees with this, two other Texas cases held that dismissal under rule 170(c) was properly construed as “without prejudice”. Texhoma Stores, Inc. v. American Central Ins. Co., 398 S.W.2d 344 (Tex.Civ.App.-Tyler), writ refd n.r.e. per curiam, 401 S.W.2d 593 (Tex.1966). Bottinelli, 594 S.W.2d at 117, also made the observation: “A default judgment can, of course, only be rendered against a defendant, while dismissal of an action or claim, on the other hand, can only be entered against a plaintiff.” In the midst of these apparent contradictions we are constrained to observe that whatever else you may call it, “a rose is a rose is a rose” and that what one court construes as an outright entitlement, under rule 170(c), to a default judgment against a plaintiff, the other asserts that “even handed justice” demands a dismissal with prejudice. Semantics aside, both theories came down to judicial discretion and whether there was an abuse thereof. Landry v. Travelers Insurance Company, 458 S.W.2d 649 (Tex.1970).

In all of the cases herein cited, we note that they have one thing in common that is not in the case before us: An order of a court. In the instant case which was filed on November 30, 1983, we note that barely a month had passed before the January 6, 1984 filing by Farmers of a motion for default judgment. Moreover this was based not on the disobedience of a court order but on failure to appear to a notice of a notary public. We are not suggesting that such notices should be ignored with impunity and we certainly do not condone the cavalier attitude of McClendon in ignoring such notices in favor of winter sports. Indeed, it is his cavalier attitude and bizarre excuses (had to go skiing both deposition settings; didn’t go to second setting because he thought someone was following him; did not even show for his motion for new trial), that convince us that the trial court did not abuse its discretion in applying the sanctions here in contention. We overrule points of error three and four.

Point of error five asserts abuse of discretion by the trial court in granting attorney’s fees of $700.00 to Farmers for the reason that attorney’s fees were not requested in Farmers’ pleadings and proof of same was not made or was insufficient. “When issues not made by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” TEX.R.CIV.P. 67. The issue was tried by consent and Mr. McBryde testified to a total of nine or ten hours spent in preparation of the two depositions. We hold that the court could reasonably have found from the testimony that the $700.00 was a proper sum for attorney’s fees. We overrule point of error five.

Having overruled the first five points of error, finding not enough in their sum total to warrant a finding of abuse of discretion on the part of the trial court, we overrule point of error six which asserts such an abuse.

We affirm.


text:
    Harold CRABTREE, Appellant, v. RAY RICHEY & CO., INC., Richey Exploration Co. & Bob Boland, Appellees.
    No. 2-84-091CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 9, 1985.
    David B. Lobingier, Fort Worth, for appellant.
    Law, Snakard, Brown & Gambill and Samuel Denny and G. Parker Young, Fort Worth, for appellees.
    FENDER, C.J., and HUGHES and JORDAN, JJ.
   OPINION

HUGHES, Justice.

Appellant, Harold Crabtree (plaintiff), has appealed the granting of a summary judgment in favor of appellees (defendants) in the appellant’s breach of contract action. The District Court granted summary judgment on the basis that the appellant’s cause of action was barred by the Statute of Frauds.

We affirm.

In April 1981, appellee Bob Boland contacted appellant in hopes of acquiring certain oil and gas leases in Wise County. Boland offered to pay appellant an overriding royalty if he would persuade some of his neighbors to sign oil and gas leases, in addition to the royalty he would receive on his own overriding royalty and appellees claim that appellant was promised only 0.5%. The agreement was never reduced to writing.

After appellant organized his neighbors and persuaded them to sign leases, appel-lees assigned appellant a 0.5% overriding royalty. Appellant demanded a 1.0% overriding royalty but appellees refused to assign any additional interest. Appellant filed suit in Wise County alleging breach of an express oral contract as his sole cause of action. Appellees answered with an affirmative defense, stating that the appellant’s suit was subject to the Statute of Frauds, TEX.BUS. & COM.CODE ANN. sec. 26.01(b)(7) (Vernon Supp.1984), which applies to:

[A]promise or agreement to pay a commission for the sale or purchase of
(A) an oil or gas mining lease;
(B) an oil or gas royalty;
(C) minerals; or
(D) a mineral interest; ...

Appellees moved for summary judgment against appellant. Appellant filed a response which raised the issue of quantum meruit, but he never amended his pleadings to allege quantum meruit. Summary judgment was granted for appellees.

Appellant has now appealed the granting of summary judgment on the basis that a quantum meruit cause of action is not subject to the Statute of Frauds and that ap-pellees were required to file special exceptions, affording the appellant a chance to amend his pleadings, before moving for summary judgment. Appellant does not refute that his contract cause of action was subject to the Statute of Frauds.

Without reaching the question of whether a quantum meruit cause of action is subject to the Statute of Frauds, we hold that the appellant never pled a quantum meruit cause of action and that appellees were not obligated to file special exceptions.

Where a plaintiffs petition omits an element of a cause of action or fails to state it with sufficient clarity to inform the defendant of the nature of the suit, it is true that the defendant must specially except to the plaintiff’s pleadings rather than immediately move for summary judgment. However, where a plaintiff pleads none of the elements of a viable cause of action, and where the cause of action pled is subject to an affirmative defense, the defendant is not obligated to file special exceptions which would suggest to plaintiff possible causes of action against the defendant.

Appellant cites the case of Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974) as authority for the proposition that a summary judgment cannot be used to circumvent the special exception procedure. While this is a correct statement of the law, it does not apply to this case. In Herring, the plaintiff failed to allege specific acts of negligence in a negligence cause of action. Id. at 9. Here, we are faced with the assertion of a separate cause of action of which no element was pled.

Therefore, we hold that summary judgment was properly granted.

Affirmed.


text:
    W.S. McMURTREY, Appellant, v. GAINESVILLE LIVESTOCK MARKETING, Appellee.
    No. 2-84-122-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 10, 1985.

      Barnhart & Morris, and John H. Morris, Gainesville, for appellant.
    Belvin R. Harris, Gainesville, for appel-lee.
    Before HUGHES, JORDAN and ASH-WORTH, JJ.
   OPINION

HUGHES, Justice.

Appellant, McMurtrey, has appealed the granting of a summary judgment in favor of appellee, Gainesville Livestock Marketing, Inc., in a suit for conversion of cattle. Appellant had filed suit alleging that his cattle were stolen by Leonard Hackworth and delivered to appellee for sale.

We reverse and remand for trial on the merits.

Appellee filed a motion for summary judgment, alleging that there was no evidence to raise the following fact issues:

(1) whether the appellant owned 5 head of cattle which were stolen by Leonard Hackworth on or about July 6, 1979;
(2) whether Leonard Hackworth delivered the same cattle to appellee for purpose of sale on July 6, 1979; and
(3) whether the appellee converted the cattle of appellant and sold stolen cattle.

The summary judgment evidence consisted of:

(1) a deposition of Leonard Hackworth taken on May 6, 1981 with three exhibits attached (Hackworth’s confession of August 6, 1979; two checks written by ap-pellee to Hackworth — a.k.a. J.D. Hekie; and an invoice from the appellee to Hack-worth — a.k.a. J.D. Hekie — describing the cattle sold on July 6, 1979);
(2) an affidavit of appellant attached to his response to motion for summary judgment; and
(3) an affidavit of Henry Stewart, an investigator for the Oklahoma Cattleman’s Association, also attached to appellant’s response to motion for summary judgment.

First, we believe that the evidence was sufficient to raise a fact issue as to whether the appellant owned 5 head of cattle which were allegedly stolen by Leonard Hackworth, using the name J.D. Hekie, on or about July 6, 1979.

Appellant’s affidavit states that he owned 9 head of cattle which he discovered missing on July 6, 1979, from a pasture in Carter County, Oklahoma, near Lone Grove. He states that he later recovered four of the cattle. The 5 not recovered were described as two black cows, a mixed breed Charoláis cow, a white-faced Hereford bull, and a white-faced Hereford cow, all with the brand “M”.

Investigator Henry Stewart’s affidavit states that appellant showed him the pasture from which appellant’s cattle had been stolen. It also states that Hackworth, while under arrest, showed him the various pastures from which he had stolen cattle, and that one pasture was the same pasture previously shown to him by appellant as the pasture from which the 9 head of cattle had been stolen.

Hackworth, in his deposition, admitted stealing cattle from near Lone Grove, Oklahoma, on at least two occasions. He could not say specifically who owned the cattle or pastures where he committed the thefts.

We hold that a fact issue was raised as to whether Hackworth stole appellant’s cattle on July 6, 1979.

Second, we believe that the evidence was sufficient to raise a fact issue as to whether Hackworth delivered appellant’s cattle to appellee for sale on July 6, 1979.

Hackworth’s deposition states that he delivered cattle to Gainesville around July of 1979 and it was the last load of cattle he sold before being transferred to Louisiana to work. His confession of August 1979 which is attached to his deposition corroborates this statement. Further, the invoice from appellee to Hackworth (a.k.a. J.D. Hekie) shows that Hackworth delivered 5 cattle to appellee on July 6, 1979; two black cows, a mixed breed Charoláis cow, a white-faced bull, and a white-faced cow. The invoice describes them as having ear-tags numbered 678 through 682. The “M” brand is not mentioned.

While this evidence is not conclusive, we hold that it does raise a fact issue as to whether Hackworth delivered appellant’s cattle to appellee on July 6, 1979 for sale.

Third, we think there was a fact issue as to whether appellee sold appellant’s cattle.

The invoice from appellee to Hackworth (a.k.a. J.D. Hekie) dated July 6, 1979 and the check from appellee to Hackworth (Hekie) demonstrates that appellee did sell 5 cattle brought to appellee by Hackworth. This evidence also shows that the cattle sold matched the descriptions of the cattle appellant claims were stolen from him, except for the “M” brand which was not described on the invoice. Hackworth’s deposition never specifically says that the cattle taken from near Lone Grove were taken to Gainesville on July 6, 1979.

Once again, the proof is not conclusive but it does raise a fact issue as to whether appellee sold appellant’s cattle on July 6, 1979.

Reversed and remanded for trial on the merits.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Aubrey WILLIAMS, Respondent.
    Supreme Court of Kentucky.
    Dec. 20, 1984.
    Bruce K. Davis, Director, Michael M. Hooper, Asst. Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    Aubrey Williams, pro se.
    John T. Ballantine, Gary Weiss, Louisville, for respondent.
   OPINION OF THE COURT

ADOPTING RECOMMENDATIONS OF THE KENTUCKY BAR ASSOCIATION AS TO DISCIPLINARY ACTION

The Kentucky Bar Association has found respondent Aubrey Williams, a practicing attorney, guilty of two charges of unethical and unprofessional conduct tending to bring the bench and bar of Kentucky into disrepute and has recommended a suspension from the practice of law for a period of three months.

The first of the two charges arose out of the failure of respondent to appear in court to represent his client on the day when a jury trial had been scheduled, thus necessitating a continuance of the case. The second charge arose from a letter written by respondent to the trial judge. Respondent requested a review of the findings and recommendations of the Bar Association, and he requested, and was granted, oral argument.

The relevant facts are that respondent was employed to represent Raymond Hin-kle, who was charged with first-degree arson in June, 1981.

Hinkle was indicted in October, 1981, and his case was set for trial, after consultation with respondent, on February 17, 1982. Respondent was a member of the Kentucky General Assembly, and it was known that the General Assembly would be in session in February, 1982. The trial judge testified that respondent assured him that he could be available for trial on February 17, 1982, while respondent testified the trial date was fixed with the understanding that it might have to be postponed if his duties in the legislature required it.

On December 8, 1981, a hearing was held concerning Hinkle’s competency to stand trial and also on a motion to dismiss the indictment. Respondent was present at the hearing. The order noted that trial was to be held February 17, 1982.

A pretrial conference was set for February 1, 1982, at 9:30 a.m. Respondent did not appear for this conference. The trial judge noted this fact in the pretrial order which again ordered that the case would proceed to trial on February 17, 1982.

Respondent wrote the trial judge a letter stating that the pretrial conference had completely slipped his mind and apologized for his failure to appear. This letter written on February 8, 1982, made no mention of continuance of the case.

On Friday, February 12, 1982, at 4:30 p.m., the trial judge received a motion for continuance because of conflicting legislative duties. The motion did not set a date for hearing, or request a hearing. The respondent did not contact the trial judge to secure a postponement of the trial, and no order granting a continuance was signed.

The defendant, Raymond Hinkle, was unable to execute bond. He had been confined in jail awaiting trial since June, 1981. He wrote the trial judge the following letter:

“I have been incaracated now going on twelve months. I have contacted my lawyer and he says that there might be a continuance in my case. I am writing you to let you know that it is my wish that ,there would not be a continuance in my case. I think that twelve months is adequate time to prepare a case such as mine.
Sincerely yours,
S/Raymond Hinkle”

When he received the motion for the continuance, the trial judge testified that a jury panel had been ordered to report to court on the 17th to try the case, that he fully expected it to be tried, but that he directed that the parents of Hinkle be notified to appear so that they would know why a continuance was necessary, if one had to be granted.

The respondent did not appear, and the case was continued for that reason. The trial judge, in a conference with Hinkle’s parents later that day, asked them if respondent had been paid, how much he had been paid, and whether they desired that he report respondent to the Bar Association. The parents did not desire the judge to report the incident to the Bar Association, but he did so of his own volition.

On February 22, 1982, respondent wrote the trial judge as follows:

“Please regard this letter as private correspondence to you as a man, and not in your capacity of a judge: After talking with Raymond Hinkle’s parents and receiving your order of February 17, 1982, I am appalled and thoroughly disgusted with your conduct on February 17, 1982. “Your actions, were totally unwarranted and highly innocuous. For your information;
“1. You were already aware that I would be in the legislature. The February 17, 1982 date was set only because I had indicated during arraignment that I would possibly be available if my committee did not meet. And you insisted on setting a date, which was tentative, pending my legislative committments.
“2. I had talked with Mr. Croley at least one week before my motion for a continuance, advising him that I would not be able to try the case.
“3. Mr. Hamilton knew I would not be there, and advised me by phone (a call initiated by him, if I remember correctly) that you desired the presence of Mr. Hinkle’s parents to explain to them why the case was being continued (approximately one week before the trial date).
“4. The matter of the Defendant’s bond and the circumstances surrounding same, as related to the instant case, is totally irrelevant.
“5. My fee is a matter between my client and me. And the meddling which you and Mr. Hamilton engaged in was not only improper, but stinks to high heaven.
“There’s little wonder the public, particularly the black community, has so little trust in our judicial system. And your conduct and that of Mr. Hamilton has re-enforced that distrust in the eyes of the Hinkles. I demand an apology from you personally and to my clients, otherwise, I’m going to file a complaint against you and Mr. Hamilton with the Judicial Removal Commission and the Bar Association.
“Very truly yours,
“S/Aubrey Williams”

A copy of the letter was forwarded to Hinkle’s parents and to the Commonwealth Attorney. This, too, was reported to the Bar Association and became the basis of the second charge against respondent.

The respondent contends that the charges arose out of a misunderstanding but not out of disrespect for the court. He called the Assistant Commonwealth’s Attorney before the trial date and informed him he would be unable to appear for the trial. The Assistant Commonwealth Attorney informed respondent that he would have no objection to a postponement of the trial; however, he also advised respondent that the judge would expect that his prior approval be secured for a postponement.

Respondent contends that he thought the case would be continued and that his appearance in court was unnecessary.

The deliberate failure of respondent to appear in court to represent his client was cavalier and disrespectful toward the court. It also constituted a failure in his representation of a client who did not want the case continued. The respondent may have thought the case would be continued, and indeed the motion to continue may have been sustained had he appeared in court, but respondent had no right at all to force a postponement of the trial by his deliberate and cavalier failure to appear in court. Respondent could move for a continuance, but he had no right to compel one.

Not only did the deliberate failure to appear show disrespect for the court, but it also interfered with orderly administration of justice and thereby tended to bring the Bench and Bar into disrepute.

In addition, the letter written to the trial judge by respondent is disrespectful on its face. The contents of the letter were not kept private but were furnished by respondent to the parents of the defendant and to the Commonwealth Attorney. Deliberately disrespectful actions toward the judiciary cannot help but tend to bring Bench and Bar into disrepute.

The evidence in the record supports the finding of the Bar Association of guilt on each of the charges. Counsel for respondent contended that even if the finding of guilt be upheld, a suspension from practice is not warranted by the facts of this case.

Respondent requested and was granted an oral argument in open court. During the course of the argument, it was disclosed that respondent had twice before, in 1978 and again in 1981, been privately reprimanded for unethical and unprofessional conduct. Some consideration must be given to the fact that these previous private reprimands have failed in their purpose. The seriousness of the charges here reviewed, coupled with the fact that respondent has twice before been privately reprimanded for unprofessional conduct, convinces us that the suspension from the practice of law for a period of three months as recommended by the Kentucky Bar Association, is fully warranted.

STEPHENS, C.J., and VANCE, GANT, LEIBSON, AKER, STEPHENSON and WINTERSHEIMER, JJ„ sitting.

All concur except AKER, J., who would limit the discipline imposed to a public reprimand.