author: MURPHY, Justice. JUNELL, Justice,

text:
    James E. ALM, Appellant and Cross-Appellee, v. ALUMINUM COMPANY OF AMERICA, et al., Appellees and Cross-Appellant.
    No. C14-82-045-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 3, 1985.
    Rehearing Denied March 28, 1985.

      W. Douglas Matthews, Schmidt & Matthews, Houston, for appellant and cross-ap-pellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

MURPHY, Justice.

This products liability and negligence suit arose on June 3, 1976, when James E. Aim’s eye was injured by a bottle cap which blew off a thirty-two ounce glass “7-Up” bottle. The trial court awarded Aim judgment for $163,025 against Aluminum Company of America, (Alcoa). We reverse and remand this cause for new trial, because the evidence is factually insufficient to support the jury findings of negligence and proximate cause against Alcoa.

Aim brought suit against Aluminum Company of America, (the designer and licensor of the closure system), J.F.W. Enterprises, Inc. (the owner of the bottler in question) and Lewis & Coker Supermarkets, Inc. (the retailer which sold the bottle to Aim). Alcoa filed a cross-action against J.F.W. and Lewis & Coker. Aim settled with J.F.W. and Lewis & Coker prior to trial. The jury found that Alcoa and J.F.W. were negligent, such negligence was the proximate cause of Aim’s injury, and that Alcoa’s negligence was 55 percent and J.F.W.’s negligence was 45 percent. The jury’s answers to special issues relating to Aim’s products liability action were disregarded by the trial court. No error was assigned on appeal concerning this action. Thus, the judgment is based upon Aim’s negligence cause of action.

Aim purchased the bottle of “7-Up” from Lewis & Coker. Lewis & Coker purchased it from J.F.W. In turn J.F.W. had purchased the cap from W.H. Hutchinson & Son, Inc. (WHS). W.H.S. had entered into a licensing agreement with Alcoa, authorizing W.H.S. to manufacture resealable aluminum closures under an Alcoa patent. The capping machine used by J.F.W. to apply the cap to the bottle was designed by Alcoa. J.F.W. was authorized by the “7-Up” Company to package and sell “7-Up” products in Houston.

The packaging of the soft drink occurred in an assembly line process at Houston “7-Up” Bottling Company, owned and operated by J.F.W. A typical assembly process involves J.F.W. employees placing empty soft drink bottles onto a conveyor and feeding them into a filler machine which places soft drink syrup and carbonation in the glass bottles. From there the bottles go to the capping machine where an aluminum cap is placed on the bottles. Top pressure is then applied to the cap and bottle creating a top-side seal. Metal rolling tools contact the side of the cap and push the metal into the channels between the threads of the bottle. This procedure creates a custom seal between the individual cap and the bottle. The final product is then placed in a carton which is then delivered and sold by J.F.W. to Lewis & Coker and others for sale to the general public.

In points of error one through ten Alcoa asserts that the evidence is both legally and factually insufficient to support the jury’s finding that Alcoa was negligent and that Alcoa’s negligence proximately caused Aim’s injury. In considering legal insufficiency points of error the court will consider only the evidence tending to support the finding, viewing it in the most favorable light in support of the finding, giving effect to all reasonable inferences that may be drawn therefrom, and disregarding all conflicting evidence. If upon such review the court finds there is a complete absence of evidence of probative force to support the finding, or only a scintilla of evidence to support it, the point must be sustained. Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In considering factual insufficiency points of error, the court examines the whole record to determine not only that there is some evidence to support the finding, but also to determine whether considering all the evidence, the finding is not manifestly unjust. If it is so weak that the finding is manifestly unjust, the court will sustain the point. Burnett v. Motyka, 610 S.W.2d 735 (Tex.1980); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).

Aim pled and attempted to prove four different negligent acts or omissions by Alcoa. The issue of negligence and proximate cause was broadly submitted. The issue inquired: Do you find that the negligence, if any, of any or all of the following parties proximately caused the occurrence made the basis of this suit: answer “yes” or “no” beside the name of each party listed:

Alcoa: _
J.F.W_
James E. Aim_

Thus, it is unknown which acts or omissions the jury determined to be negligent. It is therefore necessary to review the evidence concerning each of the four acts or omissions. The four alleged acts or omissions are that:

(1) Alcoa negligently designed the bottle and cap in that the threads on the bottle to be impressed into the cap were too shallow;
(2) Alcoa negligently designed the cap by including an optional pilfer-proof band on the cap;
(3) Alcoa was negligent in recommending to bottlers a visual inspection system based upon the batch and hold principle of quality control, as opposed to inventing or devising some fail safe system of inspection for use by bottlers;
(4) Alcoa was negligent in failing to adequately warn the bottler (JFW) and/or the plaintiff about the risk that an improperly applied cap could blow-off and cause personal injury.

We first address Alcoa’s points of error which assert the evidence is legally insufficient to support the essential elements of Aim’s negligence action against Alcoa. Negligence consists of three essential elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damage proximately resulting from that breach. Colvin v. Red Steel Company, 682 S.W.2d 243, 28 Tex.Sup.Ct.J. 153 (Dec. 15, 1984); Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex.1976); Coleman v. Hudson Gas and Oil Corp., 455 S.W.2d 701, 702 (Tex.1970). Moreover, the existence of a legal duty under given circumstances is a question of law for the court. See Abalos v. Oil Development Co., supra, at 631; Jackson v. Associated Developers of Lubbock, 581 S.W.2d 208, 212 (Tex.Civ.App. — Amarillo 1979, writ ref’d n.r.e.). The threshold question is whether Alcoa owed any duty to Aim of which one of the alleged acts or omissions would constitute a breach thereof. Aim asserts Alcoa owed the following duties to him: 1) to design its closure system in a non-negligent way so as to avoid injury to third parties such as plaintiff; and 2) to warn plaintiff and/or J.F.W. of the danger that a misapplied bottle cap could blow off and injure a consumer.

Alcoa does not contest that it owed plaintiff a duty to design its closure system in a non-negligent way. We affirm the existence of that duty. It has long been held that a manufacturer has a duty to all whom he should expect to use the product to exercise reasonable care in the adoption of a safe plan or design. Crawford Overhead Door Co. v. Addison, 504 S.W.2d 587 (Tex.Civ.App. — Beaumont 1973, no writ); Texas Bitulithic Co. v. Caterpillar Tractor Co., 357 S.W.2d 406 (Tex.Civ.App. — Dallas 1962 writ ref d n.r.e.). Alcoa designed the cap which injured Aim and designed and manufactured the capping machine which applied the cap. However, Alcoa did not manufacture or sell the cap. The question arises whether the duty discussed above applies only to the manufacturer of the product that reaches the consumer. We hold that this duty also extends to designers of the product and its manufacturing process. There is no justification for restricting this duty to the manufacturer of the product that causes the injury. If someone’s negligence proximately causes damages, it should be actionable regardless of the source, whether it be the manufacturer of the product, the designer of the product or the designer/manufacturer of the product’s manufacturing process. We are not aware of any legal precedent in Texas for this holding, but it is consistent with authority in other states. In three cases, the Massachusetts Supreme Court affirmed the liabiity of designers of a product which caused injury, but which had no part in the manufacture of the product. They are: McDonough v. Whalen, 313 N.E.2d 435 (Mass.1974); Bernier v. Boston Edison Co., 403 N.E.2d 391 (Mass.1980); and Uloth v. City Tank Corp., 384 N.E.2d 1188 (Mass.1978). See also Fabbrini Foods, Inc. v. United Canning, 90 Mich. App. 80, 280 N.W.2d 877 (1979).

We reserve for later discussion whether Alcoa owed Aim and/or J.F.W. a duty to warn.

There is some evidence that Alcoa breached its duty to exercise reasonable care in the adoption of a safe design for its closure system. Aim’s expert witness, George Greene, testified that under the Alcoa closure system there was no way that the bottler could have feasibly determined whether improperly capped bottles were going out of the plant. He testified that the sampling inspection procedure recommended by Alcoa was inadequate and that an average engineer would have designed into the closure system an inspection system that mechanically inspects the cap on every bottle.

Alcoa asserts that the standard of care applied to them must be determined at the time it was alleged to have been negligent and that this testimony is of no probative value because it was not limited to this time period. Alcoa is mistaken. The record shows that this testimony was properly limited to before June 3,1976, the date of injury.

We next consider whether there is evidence that Alcoa’s failure to provide a 100 percent or fail safe inspection method was the proximate cause of plaintiff’s injury.

Proximate cause includes two essential elements: (1) foreseeability, and (2) cause in fact. Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977); Farley v. MM Cattle Co., 529 S.W.2d 751, 755 (Tex.1975); East Texas Theaters, Inc. v. Rutledge, 453 S.W.2d 466, 468 (Tex.1970). Both elements must be present, Missouri Pac. R. Co. v. American Statesman, supra, 103, and may be established by direct or circumstantial evidence. Farley v. MM Cattle Co., supra, 755. Proximate cause cannot be established by mere guess or conjecture, but rather must be proved by evidence of probative force. Foreseeability is satisfied by showing that the actor, as a person of ordinary intelligence, should have anticipated the danger to others by his negligent act. Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970). Cause in fact means that the act or omission was a substantial factor in bringing about the injury and without which no harm would have occurred. Texas & P. Ry. Co. v. McCleery, 418 S.W.2d 494, 497 (Tex.1967).

McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980). George Greene testified that the failure to provide a 100 percent or fail safe inspection method was the cause in fact of plaintiffs injury. There was evidence that Alcoa knew that misapplied caps could blow off and cause serious injuries to consumers. From this the jury could reasonably infer that Alcoa could reasonably foresee that the failure to provide a 100 percent or fail safe inspection would create a danger to consumers.

We hold that there is some evidence that Alcoa breached its duty to Aim to design its closure system with reasonable care and that this breach was the proximate cause of Aim’s injury. We overrule Alcoa’s points of error relating to legal insufficiency of the evidence.

We now address Alcoa’s points of error that assert the evidence is factually insufficient to support Aim’s negligence action. The evidence relating to each of the four acts or omissions upon which Aim predicates his action will be discussed separately-

We find the evidence of Alcoa’s failure to include a 100 percent or fail safe mechanical inspection system with its closure system was a failure to exercise reasonable care in the adoption of a safe design to be factually insufficient for several reasons. First, it is significant that at the time of trial, 1981, a 100 percent or fail safe mechanical inspection method did not exist. This raises some question as to whether such a machine could be successfully built. Second, there is testimony that a visual inspection sampling system was more advantageous than a mechanical inspection method, because visual inspection gives the observer an indication of where to look for the cause of misapplication of the cap. Third, Dr. Robert Block testified that if a bottler followed Alcoa’s recommended inspection system of taking samples, a bottler will discover all the weak caps before they are sent out. The basis for this conclusion is that sampling allows the inspector to discover when the machine begins to go out of adjustment because the capping machine is designed so that if it is going out of adjustment, it does so gradually. There is the additional testimony of Mr. George Overturf that the misapplication of a cap by the Alcoa machine will always be repetitive and for a problem of this nature a sampling inspection system is adequate.

George Greene testified contrary to the testimony of Dr. Block and Mr. Overturf. He stated that misapplication of caps could have been intermittent, instead of continuous. In such a case, periodic sampling may not discover a misapplied cap. However, there is substantial testimony that any temporary problem with the thread formation of the cap is not the kind of defect that is going to cause a blow-off. Thus, if Greene’s testimony is accepted as true, evidence of proximate cause is still lacking.

We next consider whether the evidence is sufficient to support the theory that Alcoa was negligent in designing the thread depth of the bottle into which the cap was impressed. George Greene testified that the threads were not deep enough to facilitate visual inspection to determine the existence of weak threads. We need not determine whether the evidence is sufficient to find that the design of the thread depth was negligent, because Aim did not offer any probative evidence that the thread depth of the bottle was the proximate cause of his injury. George Greene testified that the thread design was a cause of plaintiff’s injury, but he gives no factual basis for this conclusion. The evidence overwhelmingly indicates that the cap which injured plaintiff was so badly misapplied that its misapplication is detectable by visual inspection even in the absence of deeper threads. Thus, deeper threads on the bottle which injured Aim would not have prevented the injury. The evidence is insufficient to establish proximate cause under this theory.

Aim also asserts that Alcoa was negligent in designing the cap with a pilfer-proof band on the cap. George Greene testified that the presence of the pilfer-proof band on the cap allows many caps with weak threads to reach consumers because caps with weak threads without the band would blow off immediately after they are bottled. He concluded that the pilfer-proof band made the bottle unreasonably dangerous to the consumer. However, the decision to include the pilfer-proof band did not ultimately rest with Alcoa. Alcoa designed caps both with and without pilfer-proof features. The choice of design rested with the soft drink companies and their bottlers. Assuming that the evidence is sufficient to show it is negligent to make caps with pilfer-proof bands, such negligence must be accounted to the party which made the ultimate decision to include the bands as part of the cap. Alcoa cannot be held responsible for the design decision of J.F.W.

Aim argues that because Alcoa did not warn bottlers about the dangers of a cap with a pilfer-proof band, J.F.W. did not have sufficient information to evaluate the risk of using a cap with a pilfer-proof band. Therefore, Alcoa should bear the responsibility for the unreasonable design because it chose to offer the pilfer-proof band as a design option without adequately warning J.F.W. of the risks of using a cap with a pilfer-proof band.

We find this argument unpersuasive because there is no evidence indicating that Alcoa was aware or that it was reasonably foreseeable that the presence of a pilfer-proof band would increase the risk that a blow-off would occur in the hands of a consumer. Alcoa had no duty to warn J.F.W. of a risk that at the time of the design decision was unknown and not reasonably foreseeable. Even assuming that such a risk was reasonably foreseeable, J.F.W. should still bear the responsibility. Alcoa warned J.F.W. in an owner’s manual that improper closure applications could result in a blow-off. Thus, Alcoa was in no better position than J.F.W. to anticipate this risk. In these circumstances it was the responsibility of J.F.W. to evaluate the potential risks created by the pilfer-proof band.

Aim’s final contention is that the evidence is sufficient to show that Alcoa was negligent in failing to warn J.F.W. and/or Aim about the risk that an improperly applied cap could blow off and cause personal injury. We must first decide whether Alcoa owed a duty to warn.

Alcoa was the designer/manufacturer of the capping machine which misapplied the cap that injured plaintiff. In Crocker v. Winthrop Lab., Div. of Sterling Drug, Inc., 514 S.W.2d 429, 433 (Tex.Cr.App.1974) the court stated:

If the manufacturer knows or should know of potential harm to a user because of the nature of its product, the manufacturer must give an adequate warning.

Alcoa knew that the nature of the capping machine was that through use it would become out of adjustment thereby causing the misapplication of caps. Therefore Alcoa owed a duty to give an adequate warning to the bottler, J.F.W.

Alcoa contends that it did not create the risk of misapplied caps and therefore has no duty to warn. Alcoa relies on Cactus Drilling Co. v. Williams, 525 S.W.2d 902, 911 (Tex.Civ.App.—Amaril-lo 1975, writ ref'd n.r.e.), which held that one who did not create a dangerous situation has no duty to warn another of the danger. Alcoa’s position is that J.F.W. is solely responsible for creating the risk by its failure to properly maintain the capping machines. We consider this argument to be similar to a misuse defense which is common to product liability actions. It is essentially the argument that J.F.W. misused the machines by failing to properly maintain them. Alcoa cannot rely on this defense because it was aware of this possibility. If misuse of a product by a user is foreseeable by the manufacturer, then such misuse is no defense to an action based on the failure to warn of the risk created by the misuse. Bituminous Casualty Corp. v. Black & Decker Manufacturing Co., 518 S.W.2d 868, 876 (Tex.Civ.App. — Dallas 1974, writ ref d n.r.e.); Bailey v. Boatland of Houston, Inc., 585 S.W.2d 805 (Tex.Civ.App. — Houston [1st Dist.], aff’d on other grounds, 609 S.W.2d 748 (Tex.1980).

We also believe that Alcoa had a non-negligent part in creating the risk of misapplied caps in that it created the potential for misapplied caps by designing and manufacturing a machine which through use becomes out of adjustment.

Alcoa further contends that it had no duty to warn because it did not manufacture the bottle, cap, or content of the product which injured Aim. One need not manufacture the product which causes injury for a duty to warn to arise. Alcoa’s duty to warn arises because it designed and manufactured the capping machine which created the risk of misapplied caps, and was therefore a part of the manufacturing process of a potentially dangerous product. As stated earlier, a legal duty of care (including the duty to warn) extends to the manufacturer/designer of the product and to the designer/manufacturer of the manufacturing process of the product.

Alcoa’s duty to give adequate warning, however, did not extend to Aim. Alcoa’s duty to warn ended with J.F.W., which then had the duty to communicate the warning to consumers. This is because Alcoa had no control over the labeling of the soft drinks. The bottler is the one possessing the adequate means to pass warnings, on to consumers. A manufacturer is not liable for miscarriages in the communication process that are not attributable to his failure to give adequate warning. This may occur where an intermediate party is notified of the danger, or discovers it himself, and proceeds to deliberately ignore it and pass the product on without a warning. Borel v. Fiberboard Paper Products Corp., 493 F.2d 1076, 1091 (5th Cir.1973); see Jones v. Hittle Service, Inc., 549 P.2d 1383, 1394 (Kansas 1976).

We must determine whether there is sufficient evidence that Alcoa breached its duty to give adequate warning to J.F.W. The evidence shows that Alcoa supplied J.F.W. a 1970 owner’s manual before Aim was injured with the warning:

Leakage or closure blow-off at lower pressures can occur when the closure application is improper ...

Aim contends that this warning is inadequate because it does not contain the information that closure blow-off can result in serious personal injury. The question of the sufficiency of a warning is a question of fact to be determined by the trier of the facts. Muncy v. Magnolia Chemical Co., 437 S.W.2d 15, 20 (Tex.Civ.App. — Amarillo 1968, writ ref’d n.r.e.); Bituminous Casualty Corp. v. Black & Decker Manufacturing Co., 518 S.W.2d 868, 873-74 (Tex.Civ.App. — Dallas 1974, writ ref’d n.r.e.). Because the issue of negligence was broadly submitted, there is no explicit jury finding that the warning was inadequate. However, there is an implied jury finding that the warning was adequate. The jury found J.F.W.’s negligence was a proximate cause of Aim’s injury. Because foreseeability is an element of proximate cause, such a finding includes a finding that J.F.W. knew that its negligence could foreseeably result in Aim’s injury. The jury impliedly found that J.F.W. knew or should have known, because of the warning given by Alcoa, that a misapplied cap could result in personal injury. We therefore hold that the evidence is insufficient to show that Alcoa breached its duty to adequately warn J.F.W.

Having found that the evidence is factually insufficient to establish negligence and proximate cause under any theory, we reverse the judgment of the trial court and remand this cause for new trial. Our remand of this cause makes it unnecessary to review numerous other points of error raised by Alcoa and Aim.

ON MOTION FOR REHEARING

Appellant has raised issues in his motion for rehearing which require clarification and correction of the Court’s opinion filed January 3, 1985.

In discussing whether Alcoa owed a duty to warn Aim, the opinion states, “The bottler is the one possessing the adequate means to pass warnings on to consumers.” Aim contends that this statement is factually incorrect because the evidence shows that 7-Up, the parent soft drink corporation, has control over the beverage labels and not the bottler. Aim argues that Alcoa therefore owed a duty to warn 7-Up and that the evidence shows that Alcoa did not warn 7-Up.

Assuming that 7-Up controlled the labeling, we first point out that Aim as the plaintiff had the burden to prove that Alcoa breached its duty to warn 7-Up. The only evidence presented by Aim on this issue is the testimony of George Greene that as far as he knew, Alcoa had never given the warning to 7-Up. This testimony is of no value on this issue because Mr. Greene was not an employee or representative of either Alcoa or 7-Up and there was no evidence he was in a position to know what warnings Alcoa had given or not given 7-Up. Aim failed to carry his burden of proof on this issue.

Second, J.F.W. was licensed by 7-Up to package and sell its product. J.F.W. had the physical means to place a warning on the bottles. After J.F.W. received warning from Alcoa, it was incumbent on it as the licensee of 7-Up to communicate the warning to its parent company and attempt to obtain authorization to include the warning in the labeling. We hold that whatever duty Alcoa owed to warn 7-Up, it fulfilled by its warning to J.F.W.

Aim asserts that the court erred in holding that there is an implied jury finding that the warning to J.F.W. was adequate because this finding is contrary to the judgment of the trial court that Alcoa is liable. Aim cites Lunsford v. Sage, Inc. of Dallas, 438 S.W.2d 615, 618 (Tex.Civ.App. — Houston [1st Dist.] 1969, writ ref’d n.r.e.) and Life Insurance Co. of Southwest v. Nims, 512 S.W.2d 712, 717 (Tex.Civ.App. — San Antonio 1974, no writ) for the proposition that implied findings are only presumed in support of the judgment and not to defeat it.

First, the implied finding is necessary to and in support of the portion of the judgment holding J.F.W. liable. A finding that the warning was adequate is logically essential to the jury’s conclusion that the negligence of J.F.W. proximately caused Aim’s injury.

Second, the cases cited above by Aim apply Rule 279 of the Texas Rules of Civil Procedure which states that when issues are omitted to the jury, and there is no written finding made by the trial court on the omitted issues, then such omitted issues shall be deemed to be found by the court in support of the judgment. Rule 279 refers to implied findings by the trial court, and not to implied jury findings. Therefore, this court’s implying of a jury finding from an express jury finding is not covered by Rule 279 and the cases applying it.

Appellant’s Motion for Rehearing is overruled.

JUNELL, Justice,

dissenting.

After considering Aim’s motion for rehearing, I have become convinced that (1) this court was wrong in holding the evidence is factually insufficient to support the jury findings of negligence and proximate cause against Alcoa and (2) Aim’s judgment against Alcoa should be affirmed.

In this court’s opinion of January 8,1985, we held that Alcoa had a duty to give an adequate warning but that such duty did not extend to Aim. We said Alcoa’s duty to warn ended with J.F.W. and that J.F.W. then had the duty to communicate the warning to consumers such as Aim. Reasons given for that holding were: (1) Alcoa had no control over the labelling of the soft drinks and (2) the bottler is the one possessing adequate means to pass warnings on to consumers. However, as Aim points out in his motion for rehearing, there is evidence in the record that Alcoa could have effectuated a warning because of its control over the patents involved in the closure system and its licensing arrangements which were required for the system to be used. Alcoa could have required a warning to be placed on the beverage container. Aim also contends in his motion for rehearing that our statement that the bottler is the one possessing adequate means to pass warnings on to consumers is irrelevant in light of Alcoa’s ability to warn and is factually incorrect because the undisputed evidence shows that the parent soft drink corporation, not the bottler, controls the beverage labels. I must agree with Aim concerning these contentions. This leads me to conclude that Alcoa’s duty to warn extended to Aim and that the evidence is factually sufficient to support a jury finding that Alcoa was negligent in failing to warn Aim and such negligence was a proximate cause of the occurrence made the basis of Aim’s suit. The presence of an intermediate party, the bottler, will not by itself relieve the seller of the duty to warn Aim. Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1091 (5th Cir.1973).

I am also now convinced that there was a fact issue for the jury on the question of whether Alcoa negligently failed to give an adequate warning to J.F.W. and that we were wrong in holding there was an implied jury finding that the warning was adequate. The jury finding that J.F.W. was negligent and its negligence was a proximate cause of Aim’s injuries do not necessarily imply a finding that Alcoa gave J.F.W. an adequate warning of the danger. Under the evidence in this ease and the broad form of the special issue on negligence, I believe the jury finding of negligence on the part of Alcoa includes a finding that Alcoa’s negligence was in its failure to give an adequate warning to J.F.W.. On such issue, I think the evidence is sufficient to support such finding. Furthermore, I do not believe that the jury finding of negligence on the part of J.F.W. is necessarily predicated on an implied finding that Alcoa gave an adequate warning to J.F.W.

For the reasons stated, I disagree with the result reached by the majority, with the majority’s opinion of January 3, 1985, and the majority’s opinion on motion for rehearing. Therefore, I respectfully note my dissent.


source: Caselaw Access Project

author: SEARS, Justice.

license: Public Domain

text:
    CAL GROWERS, INC., Appellant, v. PALMER WAREHOUSE AND TRANSFER COMPANY, INC., Appellee.
    No. C14-84-488CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 3, 1985.

      Timothy A. Beeton and Scott Kimball, Beeton & Eddings, Houston, for appellant.
    Harvey F. Cohen, Henri-Ann Nortman, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

This is an appeal from a summary judgment granted to the appellee. The trial court granted appellee’s Motion for Summary Judgment which alleged that appellant’s California judgment against appellee was not entitled to full faith and credit in Texas. We hold the trial court erred in granting the appellee’s motion.

Appellant filed its Original Petition seeking to enforce a default judgment entered against the appellee in California in the amount of $20,460.50. The appellee answered by general denial and affirmatively alleged the judgment was not entitled to full faith and credit because it was not actually rendered, adopted or signed by a judge in California. Appellee subsequently filed a Motion for Summary Judgment based on this same contention. Appellant’s response to the motion challenged the sufficiency of proof to support the appellee’s contention and specifically requested the trial court to take judicial notice of § 585 of the California Code of Civil Procedure which authorizes the clerk to enter a default judgment. The trial court granted appellee’s Motion for Summary Judgment.

In a single point of error the appellant contends the trial court erred in granting the appellee’s Motion for Summary Judgment because 1) the motion was insufficient as a matter of law, 2) the trial court failed to take judicial notice of the laws of California as requested, and 3) the motion was directed to a defect in appellant’s pleadings which the appellant was not given an opportunity to amend.

The movant in a summary judgment proceeding, against whom all doubts are resolved, has the burden of establishing the absence of genuine issues of material fact and the right to judgment under those undisputed material facts as a matter of law. Tex.R.Civ.P. 166-A(c); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). Where the movant relies on an affirmative defense, he must conclusively establish every factual element of the defense as expressly set forth in the motion. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). The appellee, therefore, must prove as a matter of law that the California judgment is not entitled to full faith and credit in the Texas courts.

The proof offered by the appellee in support of the motion was the California judgment itself and Texas case law holding that a judgment which does not indicate on its face that it was rendered, adopted or signed by a judge is not entitled to full faith and credit. Mathis v. Wachovia Bank and Trust Co., 583 S.W.2d 800 (Tex. Civ.App. — Houston [1st Dist.] 1979, writ ref’d n.r.e.). The judgment was, however, signed by a clerk. In its response to appel-lee’s Motion for Summary Judgment the appellant specifically requested the trial court to take judicial notice of § 585 of the California Code of Civil Procedure, which authorizes the clerk to enter a default judgment. Appellant’s response alleged a copy of the quoted statute was attached as an exhibit but the response filed with the court did not contain a copy of the statute. The trial judge refused to take judicial notice of the statute and granted appellee’s motion.

Tex.R.Civ.P. 184a (Vernon 1976), the statute in effect at the time of this lawsuit, states the judge shall take judicial notice of the statutes of another state upon the motion of a party when the party furnishes the judge sufficient information to enable him to comply with the request. It is the appellee’s contention that because the appellant never furnished the trial court with a copy of the statute, the information supplied to the judge was insufficient as a matter of law to enable the judge to take judicial notice of the California statute.

Texas case law does not hold that an actual copy of the foreign statute is required to give the judge sufficient information to take judicial notice of the laws of another state. See Shaps v. Union Commerce Bank, 476 S.W.2d 466 (Tex.Civ.App. —Beaumont, writ ref’d n.r.e.), cert. denied, 409 U.S. 1060, 93 S.Ct. 559, 34 L.Ed.2d 513 (1972) (court took judicial notice of Ohio laws when the defendant quoted from the statute); Utica Mutual Life Insurance Co. v. Bennett, 492 S.W.2d 659 (Tex.Civ.App.— Houston [1st Dist.] 1973, no writ) (holding there is no absolute rule to determine the sufficiency of information required as long as the motion for judicial notice sets forth with some particularity the law to be relied upon).

The case law cited by the appellee in support of its Motion for Summary Judgment is distinguishable in that in that case the non-movant failed to request the trial court to take judicial notice of the laws of another state. See Mathis v. Wachovia Bank and Trust Co., 583 S.W.2d at 802. Here the appellant made a proper request that the trial court take judicial notice of the law of California and gave the judge sufficient information by citing the statute and the substance therein. The trial court erred in failing to take judicial notice of California law.

We hold the trial court erred in rendering summary judgment for appellee. Appellant’s point of error is sustained.

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


author: J. CURTISS BROWN, Chief Justice.

text:
    Charles Michael SHARPE, et al., Appellants, v. SAFWAY SCAFFOLDS COMPANY OF HOUSTON, INC., Appellee.
    No. A14-84-079CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 1985.
    Rehearing Denied Feb. 7, 1985.

      John H. Holloway, Houston, for appellants.
    Marc A. Sheiness, Hirch, Glover, Robinson & Sheiness, Willard Tinsley, Tinsley, Barrelli & Tessmer, B. Lee Ware, Jr., W. Mac Gann, Gann, Fried & Edwards, Houston, for appellee.

      Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment that Charles Michael Sharpe (Appellant, plaintiff, or Sharpe) take nothing in a personal injury suit. Appellant attacks the legal and factual sufficiency of the evidence to support the jury’s responses to the special issues, alleges the trial court allowed improper cross-examination of a witness, argues there was an improper submission of special issues, and contends the trial court erred in failing to grant a mistrial due to conduct by the jury. We affirm.

Appellant was an apprentice electrician who was injured when the movable scaffolding he was working upon turned over. The scaffolding turned over while Appellant and his helper were moving it by pulling, from the top of the scaffolding, the rafters of the ceiling. Sharpe brought suit against Safway Scaffolds Company of Houston, Inc. (Safway or appellee) and Fairbanks Company (Fairbanks). Appellee leased the scaffolding to Appellant’s employer, and Fairbanks was the manufacturer of the wheels on the movable scaffolding. Appellee brought a third party action for contribution or indemnity against Saf-way Steel Products, the manufacturer of the scaffolding. Before trial, Appellant settled with Fairbanks and Safway Steel Products.

The jury failed to find that the scaffolding as it was being used was defective or that the rental of the equipment as a movable scaffold without warning rendered the equipment defective. The jury also found that Appellant’s negligence was the proximate cause of the accident and that “0” was the amount of damages suffered by Sharpe. Appellant moved for a mistrial due to a note sent by the jury during deliberations. The motion for mistrial was denied.

Appellant raises sixteen points of error. In the first point of error, he argues that as a matter of law the evidence established that the scaffolding was defective. In point of error two, Sharpe claims that the great weight and preponderance of the evidence established that the scaffolding was defective.

Appellant had the burden of proof on the issue of whether the scaffolding was defective. The failure of the jury to find a fact, upon which the proponent has the burden of proof, need not be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973); Payne v. Snyder, 661 S.W.2d 134 (Tex.App. — Amarillo 1983, writ ref’d n.r.e.); Walters v. Wright, 649 S.W.2d 649 (Tex.App. — Texarkana 1982, writ ref’d n.r.e.). In reviewing point of error one, this court must consider all of the evidence, and if Appellant established conclusively and as a matter of law that the scaffold was defective, the point will be sustained. If there is some competent evidence in the record which precludes the finding that the evidence conclusively established that the scaffolding was defective, the first point of error must be overruled. Payne v. Snyder, 661 S.W.2d at 144; O’Connor, Evidence Points on Appeal, 37 Tex.B.J. 839 (1974); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960). Looking at the entire record, we cannot say that Appellant conclusively established that the scaffolding was defective. The testimony from Appellee’s witnesses directly contradicted Appellant’s evidence. In view of the conflicting evidence, it cannot be.said that Appellant established as a matter of law that the movable scaffolding was defective. Point of error one is overruled.

In reviewing the second point of error, this court must review all of the evidence in the record to determine if the jury’s failure to find that the movable scaffolding was defective was so against the great weight and preponderance of the evidence so as to be unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Southwestern Bell Telephone Co. v. Baker, 650 S.W.2d 467 (Tex.App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.).

Appellant’s expert witness, Norman Sachnik, testified that he had tested a movable scaffolding and concluded that it was a dangerous device which was unreasonably dangerous for its intended use. Sa-chnik concluded that the scaffolding tipped over due to the wheels rotating sideways and acting as a brake. Sachnik believed that the only act of the employees that contributed to the accident was that the employees put the movable scaffolding into motion. Appellant introduced into evidence a video tape which detailed Sachnik’s tests. Sachnik also testified that another possible cause of the accident was that one of the support braces on the scaffolding came loose and caused the scaffolding to become unstable. Appellant and Leslie Moriarity, Appellant’s helper at the time of the accident, testified as to their conduct before the accident and the condition of the scaffolding and general work area.

Appellee introduced expert testimony of Kornel Nagy. Nagy also conducted tests on a similar movable scaffolding. Nagy concluded that the most likely cause of the accident was that the employees were pulling the scaffolding along from the rafters of the building and that the wheels or a wheel hit a piece of debris on the floor. There was some evidence of debris in the area at the time of the accident. Appellee also introduced evidence which contested some of the methods used by Sachnik in his tests. There were disputes over whether the scaffolding tested by Sachnik was of the same height as the one involved in the accident, whether the amount of weight on the top of the scaffolding was accurate, and whether the means Sachnik used to pull the scaffolding in his tests contributed to the tipping over of the scaffolding. William Gilbreath, an employee of Appellee, testified that the scaffolding can turn over but disagreed with Sachnik’s theory of what caused the accident. Gilbreath testified that Appellee was unaware that workers were moving the scaffolding by pulling it from the rafters instead of pushing it from the ground.

In view of the conflicting testimony, a fact issue was created for the jury. Appellant has failed to show that the jury’s failure to find that the movable scaffolding was defective was against the great weight and preponderance of the evidence. Point of error two is overruled.

In point of error three, Sharpe argues that the uncontroverted evidence established as a matter of law that the scaffolding was defective due to the lack of adequate warnings. The fourth point of error is that the great weight and preponderance of the evidence established that the renting of the scaffolding without adequate warnings as to its inherent dangers rendered the equipment defective. Again Appellant had the burden of proof on this issue. The evidence on this issue was also conflicting.

Safway introduced testimony which raised the issue of whether any further warning was necessary. There was also evidence of the actions by Appellee to give warnings to its customers. However, Ap-pellee did not claim that Appellant was actually told not to ride the scaffolding while it was being moved. We cannot agree that the Appellant has shown that the uncontroverted evidence established as a matter of law that the scaffolding was defective due to the lack of adequate warnings. Point of error three is overruled.

Sachnik testified that based upon the inherent dangers of the movable scaffolding and the fact that ordinary persons might not be aware of the risk involved, a specific warning was required. Appellant introduced evidence of various warnings that would have given notice of the risks involved and the practicality of those warnings.

Safway disputed whether any further warnings were required. Gilbreath testified that Appellee was unaware of the method Appellant used to move the scaffolding. Gilbreath detailed Appellee’s efforts to give notice to its customers. Gil-breath testified that a warning, “Do not ride moving scaffolds,” was included on lease invoices, that notices were put up on the job sites, that warning cards were passed out to workmen, and that when possible the company would meet with customers and their employees to discuss safety matters. However, Gilbreath could not produce any of the documents containing warnings. Bill Golding, Nagy, and Gil-breath criticized Sachnik’s suggested warnings as being too wordy and distracting. Nagy believed that the warning, “do not ride rolling towers,” was a sufficient warning under all the circumstances. In view of the conflicting evidence, Sharpe has failed to show that the jury’s failure to find the movable scaffolding defective due to lack of adequate warnings was against the great weight and preponderance of the evidence. The fourth point of error is overruled.

Appellant’s fifth point of error is that there was no evidence to support the finding that Sharpe was negligent and his negligence was the proximate cause of the accident. In the next point of error, Appellant attacks the factual sufficiency of the evidence to support the same finding. In reviewing a “no evidence” point of error, this court will consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Jack Roach Ford v. De Urdanavia, 659 S.W.2d 725 (Tex.App.— Houston [14th Dist.] 1983, no writ); Retzlaff v. Ground, 640 S.W.2d 676 (Tex.App.— Houston [14th Dist.] 1982, no writ).

There is some evidence which supports the jury’s finding that Appellant’s negligence proximately caused the accident. Nagy and Gilbreath testified that the proper way to move the scaffolding was by pushing it from the ground and that the method used by Appellant was improper. That testimony, and the inferences arising from the testimony, precludes a finding that there was no evidence to support the jury’s answer. Point of error five is overruled.

In reviewing Appellant's insufficient evidence point, this court must consider and weigh all of the evidence in the record to determine if it supports the judgment. In re King’s Estate, 244 S.W.2d at 661; American Oil Co. v. Fisher, 659 S.W.2d 80 (Tex.App. — Houston [14th Dist.] 1983, no writ). There was testimony as to the proper way to move the scaffolding. There was no dispute as to the manner used by Sharpe and his helper to move the scaffolding. Appellant testified that no one told him that pulling the scaffold along from the top was unsafe. Sharpe puts great reliance on the fact that Appellee’s expert witness had to learn that the scaffold had risks. Plaintiff argues that if an expert did not know the risks, it is not reasonable to expect that an apprentice electrician had any greater knowledge. We believe that a fact issue was created as to whose negligence was the proximate cause of the accident. There was some evidence that the method used by Appellant was a negligent one. There is sufficient evidence in the record from which the jury could find that his negligence was the proximate cause. Point of error six is overruled.

In points of error seven and eight, Sharpe argues that the failure to find any damages is contrary to the uncontroverted evidence or, in the alternative, is against the great weight and preponderance of the evidence. The record does contain testimony on the serious injuries received by Appellant and the extensive medical care that he has received for those injuries. However, Appellant has failed to show that the jury’s refusal to find for Appellant on any of the contested liability issues was erroneous. The rule in this state has been that without a favorable response on the liability issues, Appellant has failed to show that the refusal to find damages was harmful. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939); Johnson v. Whitehurst, 652 S.W.2d 441 (Tex.App. — Houston [1st Dist.] 1983, writ ref’d n.r.e.); Gaut v. Quast, 505 S.W.2d 367 (Tex.Civ.App. — Houston [14th Dist.]), writ ref d n.r.e. per curiam, 510 S.W.2d 90 (Tex.1974); Convey v. McGehee, 473 S.W.2d 617 (Tex.Civ.App. — Houston [14th Dist.] 1971, writ ref d n.r.e.). We believe that the automatic application of the rule of Southern Pine Lumber Co. v. Andrade, should be reexamined by our Supreme Court. In our view, a finding of no damages in the face of undisputed evidence of severe and objective injuries demonstrates a prejudice against the party which in reasonable probability affected other material issues. Clearly, such finding indicates that the jury undertook to write a judgment rather than a verdict. Such finding demonstrates a disregard of the evidence which, more likely than not, permeates the case. We recognize that the trial tactics or conduct of the plaintiff may explain such a negative finding in some cases. Also, such finding may result from serious impeachment of the plaintiff. We further note that in many eases in which such negative findings are made, the issue is contested and the finding is justified. In such cases the rule of Southern Pine Lumber makes sense. Despite our view that the Supreme Court should reconsider the automatic application of the rule of Southern Pine Lumber, we are bound by it and by the previous decisions by this Court. Therefore, we overrule points of error seven and eight.

In point of error nine, Sharpe argues that the trial court erred in overruling Appellant’s objection to Appellee’s cross-examination of Larry Janes. Appellant believes that Janes’ testimony as to causation was inadmissible hearsay. Janes was a claims representative for the compensation carrier. As part of his job, he made an investigation of the accident which caused Appellant’s injuries. Janes personally viewed the scene of the accident and received statements from persons who were present at the scene. Janes made a report based on this investigation. During cross-examination, Appellee established that Janes had investigative training. Janes testified that he had concluded that the principal cause of the accident was the conduct of Appellant and his helper. He also testified that there was dirt and debris in and around the accident scene and that at the time of the accident the scaffolding was not going in a forward direction. Appellant objected to this testimony.

Appellant argues that the testimony was pure hearsay and it was reversible error to admit it over a timely objection. Appellant believes that even if Janes was an expert, it is error to allow into evidence an expert’s opinion that is based solely upon hearsay. Moore v. Grantham, 599 S.W.2d 287 (Tex.1980).

The trial in this case occurred after the effective date of the new Texas Rules of Evidence and those rules control here. Rule 702 allows an expert to testify, in the form of an opinion, to a fact in issue if specialized knowledge will assist the trier of fact. TEX.R.EVID. 702. The rules also provide that if the facts underlying an expert’s opinion are of the type reasonably relied upon by the experts, the underlying facts need not be admissible into evidence. TEX.R.EVID. 703.

Janes’ testimony as to causation did assist the trier of fact. Appellee established that Janes was an expert by having some specialized “knowledge, skill, experience, training, or education.” TEX.R.EVID. 702. Janes’ testimony was based upon both his own observations of the accident scene and statements from others at the scene. Therefore, the testimony was not based solely upon hearsay. Even if the testimony was based solely upon hearsay, the Supreme Court, by adopting the Texas Rules of Evidence, has rejected the limitation of Moore. See generally, Blakely, Summary of Changes Effected by the Texas Rules of Evidence, 20 HOUS.L.REV. 625, 645 (1983 TEX.R.EVID. Handbook); Sutton, Article VII: Opinions and Expert Testimony, 20 HOUS.L.REV. 445, 464 (1983 TEX.R.EVID. Handbook).

Appellant also believes that the testimony was objectionable because it went to a material fact issue. The fact that opinion testimony goes to an ultimate issue to be decided by the trier of fact does not make the testimony objectionable if it is otherwise admissible. TEX.R.EVID. 704. Appellant’s ninth point of error is overruled.

In point of error ten, Appellant argues that the trial court erred in denying Appellant’s Motion for Directed Verdict. A motion for directed verdict may be granted only when the movant is entitled to prevail as a matter of law. See generally Safway Scaffold Co. of Houston v. Safway Steel Products, Inc., 570 S.W.2d 225 (Tex.Civ. App. — Houston [1st Dist.] 1978, writ ref’d n.r.e.). Appellant failed to establish under any of the liability theories that he was entitled to prevail as a matter of law. Without such a showing, the trial court did not err by failing to grant the Motion for Directed Verdict. Point of error ten is overruled.

Point of error eleven is that the trial court erred in refusing Appellant’s “requested issues as to defective scaffold and whether one of the wheels failed.” The twelfth point is that the court erred in overruling Appellant’s objections to Special Issues Nos. Two and Three and the definition of “defective.” Appellant’s basic complaint under these points is that the trial court’s general submission of the “defect issue” was improper. Appellant submitted several special issues which detailed the alleged defect in the movable scaffolding.

Rule 277 of the Rules of Civil Procedure clearly gives the trial court discretion to submit broad special issues. Once the court has fairly submitted the controlling issues, it is not reversible error to refuse to submit other and various phases or different shades of the same issues. TEX.R.CIV.P. 279. The court fairly submitted the controlling issue and did not err in refusing Appellant’s proffered special issues. Appellant has not shown that the definition of “defective” contained in the charge was an improper definition. Points of error eleven and twelve are overruled.

In point of error thirteen, Appellant argues that the court erred in overruling his objections to Special Issues Nos. Four and Five and the instruction on warnings. The fourteenth point of error is that the trial court erred in refusing Appellant’s requested issues and instructions on warnings under negligence and products liability.

Each of Appellant’s requested special issues dealt with Appellee's alleged negligent failure to warn. However, Appellant’s cause of action for failure to warn was limited to a strict products liability theory. The trial court submitted the failure to warn theory under the products liability theory in Special Issue No. Four which fairly presented the controlling issue to the jury. Appellant’s thirteenth and fourteenth points of error are overruled.

Point of error sixteen is that the “court erred and abused its discretion in overruling Plaintiff’s objections to the submission of the issue as to Plaintiff’s negligence and the form of submission of the issue.” Special Issue No. Six asked whose negligence, if any, do you find was the proximate cause of the occurrence in question. The jury’s responses were limited to Sharpe, Safway, or both. The jury found that only Appellant’s negligence was the proximate cause. Appellant argues that this was a “pure product liability” case and “negligence” of the injured party is immaterial.” Sharpe further argues that the issue constituted an impermissible comment on the weight of the evidence.

Appellant’s petition clearly alleged negligence as a cause of action so that negligence was not immaterial. There was also sufficient evidence to support the submission of the negligence issue. It is not error to submit a general negligence issue or to combine both negligence and proximate cause in one issue. TEX.R.CIV.P. 277. The issue, by including the term “if any,” did not constitute a comment of the weight of the evidence. Point of error sixteen is overruled.

In the fifteenth point of error, Appellant asserts that the trial court erred in failing to grant Appellant’s motion for mistrial. After it had been deliberating for about an hour, the jury sent out a note asking if the damage issue was dependent on any of the answers to the liability issues and if the issue had to be answered under all circumstances. Appellant moved for a mistrial at that time arguing that the jury was attempting to render a judgment rather than answering the fact issues. That motion was denied. Appellant moved for mistrial upon receipt of the verdict because of bias and prejudice of the jury. This later motion was also denied.

In his brief, Appellant admits that he was unable to establish any overt acts of misconduct resulting in the jury’s verdict. However, Appellant argues that the short time of jury deliberations, the finding of no damages, and the note from the jury clearly evidenced an intent by the jury to render judgment rather than to answer the special issues. There is no evidence in the record showing that any outside influence was improperly brought to bear upon any of the jurors during deliberations. The factors relied upon did not establish jury misconduct so prejudicial to Appellant’s case that an improper verdict probably resulted. The trial court did not abuse its discretion by failing to grant either of Appellant’s motions for mistrial. Point of error fifteen is overruled.

The judgment is affirmed.


author: ELLIS, Justice.

text:
    Patricia Ann COCHRANE, Appellant, v. HOMES OF ST. MARK, et al, Appellee.
    No. A14-84-441CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 17, 1985.
    James T. Lombardino, Houston, for appellant.
    Donald R. Royall, Royall & Kee, Mark Vela, Vela & Prashner, Edward Lindsay, Warren Cole, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and ELLIS and CANNON, JJ.
   OPINION

ELLIS, Justice.

This appeal involves a dispute over attorneys’ fees and costs in a suit affecting the parent-child relationship. Appellant, in two points of error, attacks the judgment of the trial court ordering her to pay one-fourth Qh) of the guardian and attorney ad litem fees in this case and for not granting her recovery from Appellees of her attorney’s fees. We affirm.

On November 24, 1981, Appellant, Patricia Ann Cochrane, gave birth to a baby girl. Appellant was not married. The baby girl was born with medical problems.

Ten days after the child was born, Appellant executed an Affidavit of Relinquishment of Parental Rights, in favor of Appel-lee, Homes of Saint Mark, an adoption agency. The child’s natural father, Gary Nielsen, filed a waiver of interest. One month later, Appellant sought to revoke her previously executed Relinquishment of Parental Rights. The baby was still in the hospital and Appellant sought to have the baby returned to her.

Appellee, Homes of Saint Mark, refused to return the child to Appellant. In January 1982, Homes of Saint Mark filed in the court below for Termination of Appellant’s parental rights. A guardian ad litem was appointed by the court to represent the interests of the child. When the child was about four (4) months old, she was placed in the care of Appellees, James and Peggy Fore.

On September 12, 1983, James and Peggy Fore filed a petition for termination of parental rights and for adoption of the child. The Fore’s action was consolidated with the earlier action filed by the Homes of Saint Mark. By this time, Nielsen had already filed a motion to rescind his waiver of interest and also filed a petition to adopt the child. Later, a petition to voluntarily legitimatize the child was filed by Nielsen’s attorney. On October 4, 1983, an attorney ad litem was appointed by the court to represent the child.

The case proceeded to trial on April 9, 1984. Following an eight day trial, the jury found in part that the Homes of Saint Mark caused duress to be applied upon, and executed undue influence over, Patricia Ann Cochrane which caused her to execute the Affidavit of Relinquishment of Parental Rights. On April 23, 1984, the trial judge had a hearing on the issue of attorney's fees and costs. By agreement of the parties, the issue was submitted to the court. The court heard evidence on the attorney’s fees and costs of Appellant along with the guardian and attorney ad litem. The trial court ordered that the Appellant, Nielsen, Homes of Saint Mark, and James and Peggy Fore each pay one-fourth (¼) of the attorney and guardian ad litem fees. The trial court ordered that each party was responsible for their own attorney’s fees and court costs.

On May 24, 1984, Appellant filed with the trial court a notice of limitation of appeal. In that notice, Appellant stated that the scope of the appeal would be limited to the “portion of the trial relating to attorneys fees, ad litem fees and costs.” Appellant requested a statement of facts limited to the testimony presented at the April 23rd hearing. The request for preparation of the statement of facts does not include a statement of the points of error to be relied upon.

The first point of error is that “the trial court erred in assessing a portion of the fees of the guardian ad litem and attorney ad litem and other costs” against Appellant. Appellant has not questioned the amount or reasonableness of the ad litem fees. Appellant’s complaint is limited solely to the fact that one-fourth (¼) of those fees were assessed against her.

Appellant argues that under the Family Code and Rules of Civil Procedure, the trial court erred in assessing costs against her. The Family Code provides in part that in any suit affecting the parent child relationship "... the court may award costs.” TEX.FAM.CODE ANN. § 11.18(a) (Vernon Supp.1984). That provision of the Family Code continues, providing that “[rjeasona-ble attorney’s fees may be taxed as costs.... ” Appellant then turns to the provisions of the Rules of Civil Procedure concerning the award of costs. Rule 131 provides:

The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.

TEX.R.CIY.P. 131. Appellant argues that the trial court erred in assessing part of the ad litem fees against her because such fees are costs, she was a successful party, and a successful party is to recover all costs incurred. Appellant acknowledges that under TEX.R.CIV.P. 141, the trial court may, for good cause stated in the record, adjudge the costs differently. Appellant argues that no such good cause appears in the record.

Appellant’s argument would be more persuasive if there was not a specific section of the Family Code which dealt with the payment of ad litem fees. Section 11.-10(e) provides in part that: “[a]n attorney appointed to represent a child ... is entitled to a reasonable fee in the amount set by the court which is to be paid by the parents of the child unless the parents are indigent (emphasis added).” TEX. FAM.CODE ANN. § 11.10(e) (Vernon Supp.1984). Under section 11.10(e), the trial court has no discretion as to who shall pay ad litem fees. Such fees are to be paid by the child’s parents. See Klement v. Munder, 619 S.W.2d 31 (Tex.Civ.App. — El Paso 1981, no writ). We cannot say that the trial court by ordering Appellant to pay one-fourth of the ad litem fees has committed error. Although Appellant in the first point of error complains that both the ad litem fees and other costs were erroneously assessed against her, Appellant’s discussion under that point deals only with the ad litem fees. Therefore, we do not review the trial court’s award of the “other costs.” Point of error one is overruled.

Point of error two is that “the trial court erred in failing to award reasonable and necessary attorneys’ fees in favor of Patricia Ann Cochrane and against Homes of Saint Mark and James and Peggy Fore.” Appellant argues that under section 11.-18(a) of the Family Code and Rule 131 of the Rules of Civil Procedure, the successful party is entitled to recover attorney’s fees.

TEX.FAM.Code § 11.18(a) gives the trial court, in a suit affecting the parent-child relationship, authority to assess attorney’s fees. That section does not compel the award of attorney’s fees. It expressly provides: “[reasonable attorney’s fees may be taxed as costs ... (emphasis added).” Appellant relies heavily on In the Interest of T.L.H., 630 S.W.2d 441 (Tex.App. — Corpus Christi 1982, writ dism’d). That opinion provided that:

When Section 11.18(a) of the Texas Family Code and Rule 131, T.R.C.P., are considered together, the successful party, in cases similar to the case now before this Court, is entitled to recover reasonable attorney’s fees from the unsuccessful party, absent good cause for adjudging costs as permitted by Rule 141, T.R.C.P.

Id. at 449. Section § 11.18(a) as it existed at the time judgment was rendered in that case provided that “... the court may award costs as in other civil cases.” Effective September 1, 1981, § 11.18(a) was amended to delete the phrase “as in other civil cases.” The legislature, by amending § 11.18(a), has shown that the award of costs in a suit affecting the parent-child relationship is not controlled by the provisions of the Texas Rules of Civil Procedure.

A trial court’s action in regard to the award of attorney’s fees in a suit affecting the parent-child relationship is to be reviewed using an abuse of discretion standard. Fowler v. Stone, 600 S.W.2d 351 (Tex.Civ.App. — Houston [14th Dist.] 1980, no writ); Derbonne v. Derbonne, 555 S.W.2d 507 (Tex.Civ.App. — Houston [14th Dist.] 1977, writ dism’d). Appellant has failed to establish that the trial court abused its discretion by failing to award Appellant recovery of her attorney’s fees against the Appellees. Point of error two is overruled.

The judgment is affirmed.


author: REEVES, Justice.

text:
    Leticia Pollock BENAVIDES, Relator, v. Honorable Ruben GARCIA, Judge of the 49th Judicial District Court of Webb and Zapata Counties, State of Texas, Respondent.
    No. 04-85-00018-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 30, 1985.

      Donato Ramos, Person, Whitworth, Borchers & Morales, Julio A. Garcia, Laredo, for appellant.
    Emilio “Chito” Davila, Laredo, for appel-lee.
    Before BUTTS, REEVES and TIJERI-NA, JJ.
   OPINION

REEVES, Justice.

This is an original mandamus action in which relator, Leticia Pollock Benavides, seeks an order directing Judge Ruben Garcia of the 49th District Court of Webb and Zapata Counties to dismiss a divorce suit presently pending in that court.

Relator filed suit for divorce on September 28, 1983. Respondent in the divorce action (defendant) filed an answer containing a general denial and a request that he be appointed managing conservator of the parties’ son. Relator filed a motion to dismiss on April 11, 1984, and subsequently filed a motion to transfer the case, a motion for continuance, a jury demand, another motion for continuance, an amended original petition, and finally, a second motion to dismiss. Prior to her second motion to dismiss, the trial court entered an order appointing a guardian ad litem for the parties’ three minor children. According to the trial court’s docket sheet, the court, on its own motion, then set the case for hearing on the merits on January 11, 1985. We granted relator’s motion for leave to file petition for writ of mandamus pursuant to our authority under TEX.REV.CIV.STAT. ANN. art. 1824 (Vernon Supp.1985) and issued a temporary restraining order requiring that respondent take no further judicial action in the cause pending our inquiry.

A writ of mandamus will issue to control the conduct of a public official when the duty to do the act commanded is clear and definite and involves no discretion, i.e., a ministerial act. Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422, 423 (1961); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 682 (1956); Smith v. Rankin, 661 S.W.2d 152, 153 (Tex.App. — Houston [1st Dist.] 1983, no writ).

On a timely motion, the plaintiff has an absolute unqualified right to take a non-suit before presentment of all plaintiff’s evidence as long as the defendant has not already made a claim for affirmative relief. The granting of the non-suit is a purely ministerial act. Johnson v. Harless, 651 S.W.2d 259, 260 (Tex.1983); Greenberg v. Brookshire, 640 S.W.2d 870, 871, 872 (Tex.1982); TEX.R.CIV.P. 164. No specific procedures are required under TEX.R. CIV.P. 164. The mere filing of the motion with the clerk or an oral announcement in open court are sufficient. Greenberg v. Brookshire, supra at 872.

The defendant may defeat a plaintiff’s right to discontinue the entire proceeding when the defendant seeks affirmative relief. However, he must do more than pray for affirmative relief. He must allege facts which show he has a cause of action, independent of the plaintiff’s claim, on which he might recover even if the plaintiff abandons or fails to establish his cause of action. Greenberg v. Brookshire, supra; Lipsey v. Lipsey, 660 S.W.2d 149, 151 (Tex.App. — Waco 1983, no writ); Newman Oil Company v. Alkek, 614 S.W.2d 653, 655 (Tex.Civ.App. — Corpus Christi 1981, writ ref’d n.r.e.), on remand, 657 S.W.2d 915 (Tex.App. — Corpus Christi 1983, no writ). The defendant filed a pleading entitled “Respondent and Cross-Petitioner’s Original Answer” in which he asserts a general denial and requests that he be named managing conservator of the parties’ son. This pleading fails to suffice as a counterclaim for affirmative relief. The defendant does not allege facts which show he has a cause of action independent of relator’s claim. If the defendant does no more than resist the plaintiff’s recovery, the plaintiff has the absolute right to a non-suit. Newman Oil Company v. Alkek, supra.

Mandamus will lie to direct a lower court to perform a purely ministerial function. Since the defendant alleged no facts to support a cause of action, the trial court had no choice but to grant relator’s motion to dismiss as to the divorce action.

However, relator’s non-suit does not divest the trial court’s jurisdiction to enter temporary custody orders to serve the best interests and protect the welfare of the minor children of the parties. Ex parte Brown, 382 S.W.2d 97, 99 (Tex.1964); Strange v. Strange, 464 S.W.2d 216, 219 (Tex.Civ.App. — Fort Worth 1970, writ dism’d); McClendon v. McClendon, 289 S.W.2d 640, 643 (Tex.Civ.App. — Fort Worth 1956, no writ); TEX.CONST. art. V, § 8. The temporary orders entered upon the dismissal of the underlying divorce suit continue in full force and effect until set aside by the issuing court or modified by another court of competent jurisdiction. Ex parte Brown, supra.

Respondent argues that we have no authority to issue a writ of mandamus because neither the minor children nor their court appointed guardian ad litem were notified of the petition for writ of mandamus. All persons or parties whose rights would be injuriously affected by the issuance of the writ are necessary parties. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, 594 (1936). However, these adverse parties need not be made parties in a mandamus proceeding which involves only the ministerial and nondiscretionary duties of the trial court. The writ then runs only against the trial judge. State Bar of Texas v. Heard, 603 S.W.2d 829, 832-33 (Tex.1980); Dick v. Kazen, 156 Tex. 122, 292 S.W.2d 913, 916-17 (1956). Further, the minor children involved in the case remain under the jurisdiction of the trial court until the temporary orders are set aside by that court or modified by another court of competent jurisdiction. Their rights are not injuriously affected.

We conditionally grant the writ of mandamus in part. If Judge Garcia fails to enter an order of dismissal without prejudice of relator’s divorce action, the writ will issue as to the divorce action.


author: ROBERTSON, Justice.

text:
    Jay H. JOHNSON, Appellant, v. FIRST SOUTHERN PROPERTIES, INC., Appellee.
    No. C14-84-093CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1985.
    Rehearing Denied March 14, 1985.

      C. Wayne Holder, C. Wayne Holder & Associates, Freeport, for appellant.
    Richard H. Callison, • Parks & Moss, Houston, for appellee.

      Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

This is an appeal from a judgment approving a foreclosure sale. Appellant purchased a condominium apartment in November, 1978. After August, 1979, however, he failed to make any monthly maintenance fee payments. Pursuant to provisions in the Condominium Declaration (declaration), the property was foreclosed on and purchased by appellee. Appellant thereafter filed suit to set the sale aside, but the trial court affirmed. In various points of error, appellant now attacks both the substantial and procedural validity of the foreclosure sale. We affirm.

Although the underlying facts are simply stated, this case presents a novel and complex question for our consideration. Appellant purchased his apartment subject to certain covenants and conditions on file in the Harris County records. Among the papers on file at the time of purchase was the Condominium Declaration. This declaration states that the homeowner’s council has a lien on each apartment for any unpaid assessments and obligates all co-owners of the project “to contribute, in proportion to their respective share in the Common Elements, to the payment of common expenses as a common charge covering the expenses of administration of the Project and the administration, maintenance, repair and replacement of the Common Elements, and other expenses authorized by the terms hereof.” (Appellant had an undivided .433 percentage interest in the common elements as set forth in the declaration). Furthermore, the declaration authorized the council to enforce that lien through “nonjudicial foreclosure pursuant to Article 3810 of the Texas Revised Civil Statutes and [the] Co-owner[s] [hereby] expressly grant[ed] to the Board a power of sale in connection with said lien” through a trustee designated in writing by the Board. Appellant now suggests that these provisions were ineffective under two theories.

Appellant first argues that the forced sale for payment of debts violated his constitutional homestead protections. TEX. CONST, art. XYI § 50. He reasons that since this lien does not fall into any of the listed exceptions to the ban on forced sales of homesteads, the foreclosure was invalid. See TEX. CONST, art. XVI § 50; TEX.REV.CIV.STAT.ANN. art. 3839 (Vernon 1966) (repealed and now located at Tex.Prop.Code Ann. § 41.002 (Vernon Supp.1983)). While appellant has presented a correct statement of Texas homestead law, several more basic principles come into play in this case. The shelter of a homestead is not unassailable. Rather, a right, such as a lien, may prevail over a homestead claim if such right exists before the land becomes a homestead. See Miles Homes of Texas, Inc. v. Brubaker, 649 S.W.2d 791, 793 (Tex.App. — San Antonio 1983, writ ref’d n.r.e.); Minnehoma Financial Company v. Ditto, 566 S.W.2d 354, 357 (Tex.Civ.App — Fort Worth 1978, writ ref’d n.r.e.); Saveli v. Flint, 347 S.W.2d 24, 27 (Tex.Civ.App. — Eastland 1961, writ ref’d n.r.e.). The critical question then is whether the assessment lien “existed” prior to appellant’s claim of the apartment as his homestead.

It is firmly established in Texas law that to create a homestead the person claiming the homestead must prove concurrent usage and intent to claim the property as homestead. Lifemark Corporation v. Merritt, 655 S.W.2d 310, 314 (Tex.App.— Houston [14th Dist.] 1983, writ ref’d n.r.e.). This determination becomes somewhat complicated when the “usage” follows the intent. During this interim period when the intention has not ripened into actual occupancy, the owner can, in effect, waive his homestead claim by making representations relinquishing that claim. See Savell v. Flint, 347 S.W.2d at 27. Such representations can defeat a homestead without further reference to the homestead exemptions.

In the instant case, appellant signed the papers relating to the purchase of the apartment on October 13, 1978, and moved in on November 1, 1978; consequently the interim rules come into play. The deed and the deed of trust represented that he took the apartment subject to the declaration, which declaration designated that the homeowner’s council had an assessment lien. This, of course, amounted to a prior relinquishment of appellant’s homestead claim. We therefore hold that the assessment lien constituted a valid pre-existing debt which would overcome the homestead claim. See Cooksey v. Sinder, 682 S.W.2d 252, 253 (Tex.1984).

Under a second theory, appellant contends that the declaration violated the Condominium Act effective at the time of purchase. He suggests that the Act did not authorize non-judicial foreclosure, and in fact provided that the sole remedy was to be a preferential payment upon sale of the unit. TEX.REY.CIV.STAT.ANN. art. 1301a § 18 (Vernon 1980) (repealed and now located at Tex.Prop.Code Ann. § 81.-208 (Vernon Supp.1983)). Consequently, he argues that the declaration providing for non-judicial foreclosure is invalid.

Neither the Act nor the declaration state that the remedies found in the Act are exclusive. The Act provides a framework to be utilized, if desired, but co-owners may certainly establish remedies in addition to those in the Act. See TEX.REV. CIV.STAT.ANN. art. 1301a § 3 (1980) (repealed and now located at Tex.Prop.Code Ann. § 81.001 et seq. (Vernon Supp.1983)). Appellant’s points contesting the substantial validity of the foreclosure are overruled.

In his next points, appellant claims that he received inadequate notice of the trustee’s sale. He first points out that the notice was addressed to J.D. Johnson instead of Jay H. Johnson. This error, he suggests, violated the provisions of article 3810 that the notice must be properly addressed. TEX.REV.CIV.STAT.ANN. art. 3810 (Vernon 1966) (repealed and now located at Tex.Prop.Code Ann. § 51.002 (Vernon Supp.1983)). While the address did contain the illuminated inconsistency, it was properly addressed in all other respects. Furthermore, appellant admitted receiving the notice. We accordingly hold that the address on the notice was sufficient. See Ogden v. Gibralter Savings Association, 620 S.W.2d 926, 928-29 (Tex.Civ.App.—Corpus Christi 1981), rev’d on other grounds, 640 S.W.2d 232 (Tex.1982).

Similarly, appellant argues that the fact that the notice was of a foreclosure for failure to pay maintenance fees instead of notice of acceleration of an assessment lien as required by the declaration amounted to a fatally defective error. We disagree. Again, while the notice was not technically perfect, it was sufficient to fulfill the purposes of the notice requirement and did not rise to the level of harmful error. See TEX.R.CIV.P. 434.

In his remaining points of error, appellant complains that Richard Hall was not properly appointed as trustee according to the terms and conditions of the declaration. If we properly understand his contentions, he suggests that since Rex Baker was named trustee in the deed of trust, the only way that the trustee could be changed and Mr. Hall named as replacement would be through a written instrument, signed by the president or vice-president of the homeowner’s council, attested by the secretary and filed in the Real Property Public Records. We do not follow this reasoning.

Appellant’s arguments appear to rest on a misinterpretation of the various documents here involved. As pointed out by appellant, Rex Baker was named as trustee in the deed of trust, having the power of sale to protect the lender. However, independent thereof, the condominium declarations provided that the board had the power of sale to enforce the assessment liens and authority was given to the board to “designate a trustee in writing from time to time to post or cause to be posted the required notice and to conduct such foreclosure sale,” and that such “foreclosure of the Council’s lien for unpaid assessments shall not affect, in any way, a valid first lien of any mortgagee on any Unit sold at such foreclosure.” These latter provisions exist entirely independent of the similar provisions in the deed of trust. Consequently, the formalities for the board’s designation of the trustee must be viewed without regard to the deed of trust.

With this understanding, we now examine the evidence before us. Richard Hall signed and swore to the trustee’s deed. Therein he stated that he had been designated by the board as trustee. As such, this recital gives rise to a presumption of the validity of the sale. Houston First American Savings v. Musick, 650 S.W.2d 764, 767 (Tex.1983). While this presumption is rebuttable, it is appellant’s responsibility to do so. See Musick, 650 S.W.2d at 767-68. Appellant attempted such a rebuttal only through Mr. Hall’s own testimony that the instrument in his possession appointing him trustee was signed only by the president of the board. Although the declaration does require that the designation be attested by the secretary and filed in the public records, this is only necessary when the trustee is changed. Appellant did present evidence that Rex Baker was a prior trustee, however, his designation, as pointed out above, is totally unrelated to the declaration sale for unpaid assessments. He presented no other evidence that the designation of Richard Hall was a “change,” requiring the formalities suggested in his points of error. Having thus failed to adequately rebut the presumption of validity, appellant’s points of error are overruled.

The judgment is affirmed.


author: MURPHY, Justice.

text:
    Pinkie Louise DOUGLAS, et al., Appellants, v. RELIANCE INSURANCE COMPANIES, Appellee.
    No. C14-84-377CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1985.
    Rehearing Denied March 7, 1985.

      John D. Wittenmyer, Conway & Witten-myer, Houston, for appellants.
    John W. Belk, Hirsch, Glover, Robinson & Sheiness, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

MURPHY, Justice.

This is an appeal from a take-nothing judgment wherein the trial court refused to mature a workers’ compensation award of weekly death benefit payments and grant Appellant a lump sum payment pursuant to TEX.REV.CIV.STAT.ANN. art. 8307, § 5a (Vernon 1967). We affirm.

On or about February 19, 1975, Melvin Douglas suffered accidental injuries in the course of his employment which resulted in his death. On March 24,1976, the Industrial Accident Board (IAB) awarded workers’ compensation benefits to Pinkie Louise Douglas, the surviving widow, and to his five minor children. The Board ordered Appellee, Reliance Insurance Company, to pay $35.00 per week to Pinkie Louise Douglas, less attonrey’s fees of $8.75 per week for the first 200 weeks. After 200 weeks, Appellee was to pay the full $35 per week to Mrs. Douglas, until her death or remarriage. Additionally, Appellee was ordered to pay $29.17 per week to Pinkie Louise Douglas, as guardian and next friend of her minor children, less attorney’s fees of $7.29 for the first 200 weeks. After 200 weeks, Appellee was to pay the full $29.17 per week to Mrs. Douglas for the minor children, until they reached 18 years of age (or 25 years, if enrolled in an accredited school).

Pursuant to the Board’s order, Appellee began making weekly payments to Appellant in August 1976. In March 1982, Appellants filed suit to mature the award, alleging that on a number of occasions Appellee had failed to make timely payments of the weekly benefits. Appellants sought a lump sum payment, a twelve percent penalty, and reasonable attorney’s fees as authorized by Article 8307, § 5a, which reads, in part:

Where the board has made an award against an association requiring the payment to an injured employee or his beneficiaries of any weekly or monthly payments, under the terms of this law, and such association should thereafter fail or refuse, without justifiable cause, to continue to make said payments promptly as they mature, then the said injured employee or his beneficiaries, in case of his death, shall have the right to mature the entire claim and to institute suit thereon to collect the full amount thereof, together with twelve per cent penalties and attorney’s fees, as herein provided for.

At the conclusion of a non-jury trial, the court rendered a take-nothing judgment against Appellants from which they have perfected this appeal.

In points of error one, two, eleven, twelve, thirteen, fourteen, and fifteen, Appellants contend that the trial court erred in finding that Appellee did not fail or refuse to promptly issue weekly drafts for payments to Appellant, and, in concluding that the award of the Industrial Accident Board should not be matured. It is their contention that the evidence established the contrary as a matter of law, or, alternatively, that such findings were against the great weight and preponderance of the evidence. However, Appellants have limited their argument to specific instances that show, as a matter of law, that the Defendant breached its duty under Article 8307, § 5a. Thus, we will also limit our discussion accordingly.

In support of their argument that the evidence shows Appellee failed to comply with the IAB award as a matter of law, Appellants cite the following instances in their brief:

(1) Upon completion of the first two hundred weeks, the weekly payments to Appellants were to increase under the terms of the award. Appellants contend that the undisputed evidence established that Appellee failed to increase the weekly checks until week 204 and never made up the deficiency to Appellants.
(2) Appellee mailed a weekly check for the week of February 11,1982, (week 367) to the wrong party. The following week of February 18, 1982, (week 368) Appellee cancelled the misdirected draft and reissued a replacement. However, no original draft was issued for week number 368.
(3) Mrs. Douglas testified she received a draft in the sum of $29.17 from Ap-pellee in March, 1982 which had an issue date of October 21, 1981.
(4) The evidence reflects that the weekly drafts were often issued three to four days later than the last date for the period due.

In response to Appellants’ argument, we must first point out that in May 1978, Appellee made a four week advance payment on all of its death claims, including that of Appellants. Appellee explained that such advances were made in order to insure that payments would be timely and in order to be in compliance with Art. 8307, § 5a, even if it failed to make a weekly payment. When questioned by the court during oral argument, Appellants conceded that, taking into consideration the four week “advance payment” made by Appel-lee, no weekly check was late as a matter of law. Therefore, notwithstanding the allegations enumerated above, Appellants’ admission in open court precludes any further discussion of these matters. We overrule points of error one, two, and eleven through fifteen.

As a consequence of our ruling on the above points, it is incumbent upon this Court to address Appellants’ points of error nine and ten wherein they argue that Appellee had no authority to make any advance, or “lump sum,” payment. Appellants first contend that the trial court erred in finding that Appellee made an advance payment of four weeks commencing with the 200th week, continuing to make weekly payments one month in advance, because the evidence established the contrary as a matter of law, or, alternatively, that such finding is against the great weight and preponderance of the evidence. Appellant correctly states that the court erred in finding that Appellee made its four week advance commencing with the 200th weekly payment. In fact, the advance was made after week 168, not week 200. Nevertheless, we find that if it was error, it was harmless. TEX.R.CIV.P. 434.

Additionally, Appellants cite Articles 8306, § 15 and 8307, § 12 to support their contention that Appellee’s advance payment was improper, stating that “any advances or ‘lumping’ of payments must first be approved through the Industrial Accident Board.” Appellant is correct in stating that lump sum payments must be approved by the IAB. In fact, Article 8306, § 8(d), which Appellants have failed to discuss, states that “benefits payable to a widow, widower, or children under this section shall not be paid in a lump sum except in events of remarriage or in case of bona fide disputes as to the liability of the association for the death.” While we fully recognize the lump sum provisions set out in the Act, we do not believe any of these provisions should be made applicable to a four week advance payment such as that made by Appellee. While it is true that Appellee made the payment in order to avoid the stringent penalties of Article 8307, § 5a, we are not persuaded that such action was, by the terms of the Act, subject to approval by the IAB before it could be effected. We overrule points of error nine and ten.

In light of our disposition of the above points of error, we need not address Appellants’ remaining points.

The judgment of the trial court is affirmed.

      . The limitations placed on lump sum awards by the death benefit statute do not apply to an enforcement proceeding under Art. 8307, § 5a. Twin City Fire Insurance Co. v. Cortez, 576 S.W.2d 786 (Tex.1978).