author: CANTU, Justice.

text:
    Juan & Martha DE LOS SANTOS, Appellants, v. ALAMO LUMBER COMPANY, Appellee.
    No. 04-83-00147-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 28, 1984.

      B. Mills Latham, Latham & Patterson, Corpus Christi, for appellants.
    Emerson Banack, Jr., Foster, Lewis, Langley, Gardner & Banack, San Antonio, for appellee.
    Before CADENA, C.J., and CANTU and REEVES, JJ.
   OPINION

CANTU, Justice.

This is a deceptive trade practices act suit brought by Juan and Martha De Los Santos, the buyers of a house, against Alamo Lumber Company (Alamo), the builder and seller of the house, for breach of implied and express warranties and for false representations allegedly made by Alamo arising out of the sale of the house. After a jury verdict favorable to the buyers, a judgment notwithstanding the verdict was entered that the buyers take nothing. The buyers have appealed from that judgment, and Alamo has filed cross-points. We reverse and render.

The buyer’s home is in Karnes County, Texas. They purchased the home from Alamo for $17,600.00 on September 26, 1974. Shortly after moving into the house the buyers began to experience problems with the plumbing and with windows and doors that would stick and leak. Cracks in the sheetrock and the brick veneer were also noted. The buyers contacted Alamo about the problems, and Alamo sent repair people to work on the problems. Some apparently were corrected while others were not.

The house had been constructed on a sloping site. To provide a level base for the slab foundation, the builder cut out the soil at the top of the slope and used it to fill in at the bottom of the slope. According to expert testimony, the builder failed to properly compact the fill soil at the bottom of the slope which caused the foundation under that half of the house to settle and crack. This settling was, in turn, responsible for many of the incidental problems with the windows, doors, sheetrock and brick veneer. The buyers notified Alamo of the foundation problem, and Alamo attempted to repair it by jacking up the half of the foundation that had settled and pouring in a new footing underneath to support it. Alamo contends that this work corrected the foundation problem. The buyers testified that the house was in worse shape after the foundation work.

The case was tried to a jury. In answer to special issues, the jury found that Alamo represented that the house repair services were of a particular standard or quality when they were of another and that they had characteristics or benefits which they did not have, that Alamo had breached an express warranty, and that Alamo had breached an implied warranty by failing to construct the house in a good and workmanlike manner. The jury also found that these representations and breaches were producing causes of any adverse effects upon the buyers. The jury found that the reasonable cost, in Karnes County, of house repair services necessary to restore the home to the condition that it was represented to the buyers was $7,500.00. Alamo moved for a judgment notwithstanding the verdict which the trial court granted. A take nothing judgment in favor of Alamo was rendered.

The buyers argue in their first point of error that the trial court erred in granting the motion for judgment notwithstanding the verdict because there was some evidence to support the jury’s finding that Alamo had breached the implied warranty of construction in a good and workmanlike manner. See Humber v. Morton, 426 S.W.2d 554, 555 (Tex.1968). Alamo argues that the court ruled properly, and, in its cross-points, argues alternatively that there was no evidence or insufficient evidence to support the jury verdict.

In reviewing the grant of a judgment notwithstanding the verdict, we review the evidence in the light most favorable to the jury findings, considering only the evidence and inferences which support those findings and rejecting evidence and inferences contrary to those findings. Miller v. Bock Laundry Machine Co., 568 S.W.2d 648, 650 (Tex.1978). We must overrule the action of the trial court if we determine that there is more than a scintilla of evidence upon which the jury could have made the findings. Id. at 649-50. Under this standard, we find more than a mere scintilla of evidence to support the finding that the house was not constructed in a good and workmanlike manner. The buyer’s expert witness testified that the foundation settled due to the failure of the builder to properly compact the fill dirt that half of the house sat upon. There was testimony that many of the problems with the doors, window and walls were due to the settling of half of the foundation. Cf. Holifield v. Coronado Building, Inc., 594 S.W.2d 214, 216 (Tex.Civ.App.—Houston [14th Dist.] 1980, no writ); Richman v. Watel, 565 S.W.2d 101,102 (Tex.Civ.App.—Waco), writ ref’d n.r.e. per curiam, 576 S.W.2d 779 (Tex.1978). The trial court therefore erred in granting Alamo’s motion for judgment notwithstanding the verdict.

When a trial court has entered an erroneous judgment notwithstanding the verdict, the appellate court must reverse the trial court’s judgment and enter judgment in harmony with the verdict, unless the appellee presents by cross-points grounds sufficient to vitiate the jury’s verdict or to prevent affirmance of the judgment had one been entered on the verdict. Miller, 568 S.W.2d at 652; TEX.R.CIY.P. 324(c). Alamo presents two cross-points under its reply to the buyer’s first point of error. Alamo argues that there was no evidence of breach of the implied warranty since there was no evidence of what constituted good and workmanlike construction under the circumstances. Alamo further contends that there was insufficient evidence of the breach of the implied warranty.

In support of its cross-points, Alamo argues that evidence of the problems with the house, standing alone, does not constitute evidence of breach of a warranty of good workmanship or fault on the part of the builder. Alamo cites Southern Roofing & Sheet Metal Co. v. Paramount Construction Co., Inc., 512 S.W.2d 781 (Tex. Civ.App.—Houston [14th Dist.] 1974, writ ref’d n.r.e.). That case involved a commercial building with a leaky roof. It is distinguishable in that there was no evidence of fault on the part of the contractor in constructing the roof. There was, however, evidence that the problem with the roof lay in inadequate plans and specifications. Id. at 784. As we have said, there was evidence in the case at bar that the foundation problems were due to the builder’s failure to properly compact the fill soil under the part of the foundation that settled.

The other case cited by Alamo is Texas Sling Co. v. Emanuel, 431 S.W.2d 538 (Tex.1968). It involved the failure of a splice in a cable securing a crane. When the splice failed, the crane fell causing injury to the plaintiff. It is distinguishable in that, again, no fault on the part of the defendant was shown. In fact, the cause of the failure of the splice was never proved. Id. at 541.

We hold that there was evidence submitted to support the jury’s finding on the breach of implied warranty. The evidence of the problems with the house did not stand alone. Rather the evidence connected Alamo’s failure to properly compact the fill soil with the foundation and the other problems with the buyer’s house. Furthermore, when considering all the evidence, as we must, we find sufficient evidence to support the jury finding. Even Alamo’s expert witness noted the connection between the failure to compact the fill soil and the settling of the foundation.

We have thus found that, at least on the issue of the builder’s liability, the granting of the judgment notwithstanding the verdict was in error. We deem it unnecessary to discuss the buyer’s points concerning Alamo’s breach of the express warranties allegedly involved in this case. The buyer’s last point concerns the measure of damages. The jury found in its answer to special issue 12 that the reasonable cost of repair necessary to restore the house to the condition that it was represented to the buyers was $7,500.00. The only testimony with regard to the amount of damages came from two expert witnesses. The buyer’s expert testified that the reasonable and necessary costs to repair the defects in the house were $22,500.00, while Alamo’s expert testified that it would cost $650.00 to repair the house.

Alamo argues that the trial court’s judgment was proper because there was no evidence or insufficient evidence of damages according to the proper measure, difference in value between the house as built and the house had it been constructed without the defects. Alamo further argues that the cost of repair proof was not supported by the pleadings.

The buyer’s pleadings were not specific. They alleged that their house contained structural defects, defects in material, defective workmanship, and that the damage suffered by their home is irreparable. Alamo argues that this allegation of irreparability provided the basis only for proof in submission of the difference in value measure, but that the buyer’s only proof was of cost of repair. The general rule in defective construction cases is that damages are based on cost of repair if repair is feasible and does not involve unreasonable economic waste. Jim Walter Homes, Inc. v. Mora, 622 S.W.2d 878, 883 (Tex.App.—Corpus Christi 1981, no writ). Where, however, the correction of the defects would require that the structure, in whole or in material part, be changed, or the expense of such repair would be great, the correct measure of damages is the difference in the value of the structure as constructed and its value had it been constructed without defects. Id.

The buyer’s expert testified that to repair the house the defective portion of the foundation would have to be removed and rebuilt which would necessitate the removal and rebuilding of the portion of the house that sat upon that part of the foundation. The total estimated cost of this procedure, according to the expert, would amount to $22,500.00, or nearly $5,000.00 more than the house’s 1974 purchase price. This testimony, although perhaps supporting a conclusion that repair of the house was unfeasible, nevertheless was expressed in terms of cost of repair. Since the buyer’s pleadings claimed irreparability, testimony on unfeasibility of repairs would speak to the difference in value method of computing the damages. However, no evidence was offered to show the value of the house as constructed with its claimed defects. The buyers were, therefore, not entitled to submission of an issue on the difference in the value of the structure as constructed and its value had it been constructed without defects.

Alamo, however, pleaded that the defects, if any, were repairable. Its expert witness testified that he considered the remedial work performed on the foundation in 1977 to have corrected the foundation problems, and that all that remained was to resquare the doors and windows, patch the cracks and repaint the interior. He testified that this repair work would cost $650.00. Having pleaded that the damage to the buyer’s house was repairable, Alamo cannot complain of the insufficiency of the buyer’s pleadings to support the submission of the cost of repair issue. The pleadings of both parties must be examined to determine whether there is support for the submission of a special issue. Aetna Casualty & Surety Co. v. Harris, 428 S.W.2d 112, 114 (Tex.Civ.App.—Beaumont 1968, no writ); Mattiza v. Lachs, 204 S.W.2d 848, 849 (Tex.Civ.App.—San Antonio 1947, no writ). Since Alamo’s own expert witness testified regarding the cost of repair of the house and since the buyer’s witness expressed his opinion in terms of cost of repairs, albeit in terms of unfeasibility, the buyers were entitled to the benefit of the testimony of their witness as well as Alamo’s expert witness. Gulf C. & S.F. Ry. Co. v. Cusenberry, 86 Tex. 525, 26 S.W. 43, 44 (1894); Tate v. Johnson, 140 S.W.2d 288, 292 (Tex.Civ.App.—Fort Worth 1940, writ dism’d judgmt. cor.). We thus hold that the pleadings were sufficient to support the submission of an issue on cost of repair and that there was evidence submitted of cost of repair.

Applying the standard of review requiring a survey of the evidence in the light most favorable to the jury findings, that is, considering only the evidence and inferences which support the findings and rejecting all evidence and inferences contrary to those findings we must conclude that there is more than a scintilla of evidence upon which the jury could have arrived at a damage award of $7,500.00. When we review, the entire record as we must, we do not agree that there was insufficient evidence to support the measure of damages issue submitted to the jury and its answer in response to the issue.

We sustain the buyer’s first and last points of error and hold that the trial court fell into error when it granted the judgment notwithstanding the jury’s verdict on both liability and damages. Alamo’s cross-points are, accordingly, overruled.

Buyers purchased their house on September 26, 1974 and attempted to have the many problems corrected during the period extending through 1977. The lawsuit against Alamo was filed sometime in 1978.

Final attempt to make corrections occurred either in June or July of 1977 and the buyers were given assurances that all problems associated with the house had been cured.

In Woods v. Littleton, 554 S.W.2d 662, 666 (Tex.1977) the Texas Supreme Court held that the date the act or practice giving rise to the cause of action under the Deceptive Trade Practices Act, rather than the date of the sale, determines the applicability of the Act.

The Act in 1977, and prior to the 1979 and subsequent Amendments provided:

Sec. 17.50A DAMAGES. DEFENSES In an action brought under Section 17.-50 of this subchapter actual damages only and attorney’s fees reasonable in relation to the amount of work expended and court costs may be awarded where the defendant: ...
See S.B. No. 664 (Acts 1977, 65th Leg., p. 603, ch. 216, § 5, eff. May 23,1977).

The original Act provided:

Sec. 17.50 Relief for Consumers (b) In a suit filed under this section, each consumer who prevails may obtain:
(1) three times the amount of actual damages plus court costs and attorney’s fees reasonable in relation to the amount of work expended; ...
Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21, 1973.

Although the final attempt to correct with assurances that the corrections had been made occurred subsequent to the effective date of the 1977 amendments, the majority of the acts and practices giving rise to the cause of action occurred during the period of time in which the act provided for trebling of actual damages.

In view of the Legislature’s intent that the Act be liberally construed to promote its underlying purposes to protect consumers we agree with the buyers that they are entitled to a trebling of their actual damages. § 17.44; Franklin v. State, 631 S.W.2d 519, 521 (Tex.App.—El Paso 1982, no writ); First Title Co. of Corpus Christi, Inc. v. Cook, 625 S.W.2d 814 (Tex. App.—Fort Worth 1981, writ dism’d).

Inasmuch as the buyers have not complained on appeal of denial of attorney’s fees and because the record reflects no effort to offer proof on reasonable attorney’s fees, we find no reason to remand for a hearing on unliquidated attorney’s fees. Instead we render the judgment that the trial court should have rendered. TEX.R. CIV.P. 435.

The judgment of the trial court is reversed and judgment is here rendered in accordance with the jury verdict that Juan and Martha de los Santos shall recover of and from Alamo Lumber Company the sum of $7,500.00 as actual damages to be trebled; or the sum of $22,500.00 together with all costs of court and interest as provided by law.


source: Caselaw Access Project

author: DOYLE, Justice.

license: Public Domain

text:
    James Prentiss WELCH, Appellant, v. The STATE of Texas, Appellee.
    No. 01-82-0908-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 29, 1984.
    Rehearing Denied Nov. 29, 1984.
    Neal Y. Pickett, Houston, for appellant.
    William A. Meitzen, Fort Bend County Dist. Atty., Richmond, Donald W. Bank-ston, Port Bend County Asst. Dist. Atty., Richmond, for appellee.
    Before DUGGAN, LEVY and DOYLE, JJ.
   OPINION ON MOTION POR REHEARING

DOYLE, Justice.

In our original opinion, 680 S.W.2d 834, we found that the evidence was insufficient to sustain a conviction for possession with intent to deliver a controlled substance, methamphetamine. We reversed and acquitted.

The state now contends, among other things, that this court should have reversed and remanded the case, because the evidence showed appellant to be guilty of possession of methamphetamine, a lesser included offense of possession with intent to deliver methamphetamine.

Under the peril of double jeopardy, we were required to order an acquittal of appellant on the possession with intent to deliver charge under the authority of Supreme Court of the United States in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2141, 57 L.Ed.2d 15 (1978). However, the Court of Criminal Appeals has held that “once this Court has found the evidence insufficient on an alleged aggravating element, retrial on the lesser included offense is not precluded.” Moss v. State, 574 S.W.2d 542 (Tex.Crim. App.1979); Ex parte Harris, 600 S.W.2d 791 (Tex.Crim.App.1980); Granger v. State, 605 S.W.2d 602 (Tex.Crim.App.1980).

A reading of the foregoing authorities will reveal that this court’s opinion as issued is appropriate under its findings and needs no reformation. The state is free to retry appellant for the lesser included offense of possession.

The motion for rehearing is denied.


author: PER CURIAM.

text:
    Sherian L. COWAN, Relator, v. Hon. Looney E. LINDSEY, Respondent.
    No. 12-84-0203-CV.
    Court of Appeals of Texas, Tyler.
    Nov. 29, 1984.

      Bert Creel, Tyler, for relator.
    Ric Freeman, Weldon McFarland, McFarland & Freeman, Tyler, for respondent.
   PER CURIAM.

This is an original mandamus proceeding. Relator, Sherian L. Cowan (“mother”), has petitioned this Court to compel Judge Looney Lindsey, sitting as judge of the 321st District Court of Smith County, Texas, to set aside his order denying her application for writ of habeas corpus and granting temporary managing conservatorship of her children, Amanda Kay Cowan and Matthew Cody Cowan (“children”), to their paternal grandparents, John and Luceal Cow-an (“grandparents”).

Relator and J. Frank Cowan were divorced on March 29, 1976, and were named in the decree as joint managing conservators of their children, Amanda Kay Cowan and Matthew Cody Cowan. On April 4, 1977, the Court signed an order changing managing conservatorship and naming J. Frank Cowan as the sole managing conservator of the children. Relator was named as pos-sessory conservator. Her visitation schedule included, inter alia, having the children one day and one night each weekend. Testimony by the grandparents indicated that while the children spent the night at their father’s house, they spent most of the day, when not in school, at their grandparents. The grandmother prepares their meals and chauffeurs them to school activities. The children have their own bedrooms at their grandparents’ house and bathe and dress there.

J. Frank Cowan died on August 22, 1984. The grandparents filed a motion to modify the 1977 order affecting the parent-child relationship seeking temporary and permanent managing conservatorship of the children. A temporary restraining order was entered allowing the grandparents exclusive possession of the children pending further hearing on the motion.

Relator filed an application for writ of habeas corpus and request for writ of attachment in the trial court, alleging that she was entitled to possession of the children as their surviving parent and that the children were being illegally restrained by the grandparents under the temporary restraining order. Relator also attacked the grandparents’ standing to seek managing conservatorship of the children.

The grandparents contested the issuance of the writ of habeas corpus, alleging that there is a serious, immediate question concerning the emotional welfare of the children, and that under TEX.FAM.CODE ANN. §§ 14.10(c) and 11.11, the court should issue a temporary order giving them managing conservatorship of the children. They also filed another pleading entitled “Original Suit for Further Action in Suit Affecting the Parent-Child Relationship,” again asking for temporary and permanent managing conservatorship. Relator filed motions to dismiss both of the grandparents’ actions.

A hearing was held on September 20, 1984, to determine the numerous matters presented to the Court. On September 21, 1984, Judge Lindsey signed an order denying relator’s motions to dismiss and her application for writ of habeas corpus and request for writ of attachment. The court also appointed John Cowan and Luceal Cowan as temporary co-managing conservators of the children pending further order of the Court after finding that the children were in imminent danger of physical or emotional harm, that a serious, immediate question concerning the welfare of the children existed and that the temporary orders were in the “best interest” of the children. Relator was named as temporary possessory conservator of the children and was given possession of the children every weekend and for a reasonable time during Thanksgiving, Christmas, summer holidays and birthdays of the children.

A Motion for Leave to File Petition for Writ of Mandamus was filed in this Court by relator praying that the trial court be compelled to set aside its order denying habeas corpus relief and granting temporary managing conservatorship to the grandparents.

The law which applies to the situation at hand is clear. TEX.FAM.CODE ANN. § 14.10(e) directs that in the absence of a court order governing right to possession, habeas corpus will lie to compel return of the child to the relator with superi- or right of possession under § 12.04 of the Family Code. “In the absence of specific provisions to the contrary in an order establishing conservatorship, the death of the managing conservator ends the conserva-torship order and it no longer constitutes a valid subsisting court order for purposes of section 14.10.” Greene v. Schuble, 654 S.W.2d 436, 437-38 (Tex.1983). TEX.FAM. CODE ANN. § 12.04 states that unless otherwise provided by judicial order or affidavit of relinquishment, the parent of a child has the right to physical possession of the child. As stated in Greene v. Schuble, supra at 438:

Even a court of continuing jurisdiction is bound by the mandatory language of section 14.10. It must grant a writ of habeas corpus for the delivery of possession of a child to the person with the superior right of possession without any delay for separate or simultaneous consideration of a pending motion for modification of the prior court order, unless an exception under section 14.10 is shown to exist. Strobel v. Thurman, 565 S.W.2d 238, 240 (Daniel, J., concurring); Trader v. Dear, 565 S.W.2d 233, 237 (Daniel, J., concurring).

The Supreme Court has made it quite clear that issues of best interest should not be litigated in habeas corpus proceedings. McElreath v. Stewart, 545 S.W.2d 955 (Tex.1977). The trial court’s order and the evidence presented at the hearing indicate that the trial court considered more than the immediate welfare of the children; however, we have carefully examined the record to see whether the children are in “imminent danger of physical or emotional harm” and whether immediate action is necessary to protect the children. See Forbes v. Wettman, 598 S.W.2d 231 (Tex.1980); McElreath v. Stewart, supra.

The primary basis of the trial court’s decision apparently is that the children have, for all practical purposes, lived with their grandparents for so long a period of time that to require them to move in with the relator would be emotionally harmful.

Amanda Cowan is presently 13 years old, and her brother Cody is 11 years old. Pursuant to the 1977 modification order giving their mother possessory conservatorship, the children have spent at least one day and one night, and sometimes more, every weekend with relator. No showing was made that these visits harmed either child. If the trial court in fact believes that the evidence depicts a situation so dangerous as to warrant the issuance of temporary orders as contemplated by the Family Code, it seems odd that relator was granted temporary possessory conservatorship with frequent visitation privileges.

Furthermore, Amanda testified that while she would prefer to live with her grandparents, “it wouldn’t be a problem” to live with her mother. Amanda, however, also testified that Cody wants to live with relator. The only expert who testified as to the psychological impact of moving the children stated that no emotional harm would result from such a move, and that it would, in fact, be “very beneficial” to Cody, and “more appropriate” for both children in recovering from the grief of their father’s death.

While the evidence presented may bear on the best interest issue, it certainly does not show the sort of imminent danger envisioned by the Family Code which would outweigh relator’s right to possession under § 12.04(1). In the absence of such evidence, and upon relator’s showing of a superior right of possession, granting of the writ should have been “automatic, immediate, and ministerial.” Armstrong v. Reiter, 628 S.W.2d 439, 440 (Tex.1982).

Accordingly, the trial court erred in denying relator’s application for writ of habe-as corpus and in granting temporary managing conservatorship to John and Luceal Cowan. A writ of mandamus will issue only if Judge Lindsey declines to vacate his order and grant the requested writ. Also, we strongly urge the trial court to proceed to trial on the conservatorship issue as soon as possible.


author: DICKENSON, Justice.

text:
    Gussie HILBURN et al., Appellants, v. BRAZOS ELECTRIC POWER COOPERATIVE, INC., Appellee.
    Nos. 11-84-187-CV, 11-84-188-CV.
    Court of Appeals of Texas, Eastland.
    Nov. 29, 1984.
    Rehearing Denied Jan. 10, 1985.
    Richard D. Coan, Coan & Terrill, P.C., Stephenville, for appellants.
    Patrick D. Millar, Waco, for appellee.
   DICKENSON, Justice.

Brazos Electric Power Cooperative, Inc. sought to condemn easements across two tracts of land for the erection and maintenance of an electric power transmission line. Brazos filed its petitions on March 17, 1971. The District Judge appointed Special Commissioners on March 17, 1972. The condemnation hearing was held on April 13,1972, and the Awards were signed on that date. Brazos made the deposits and payments required by law, filing cost bonds on April 26, 1972. The landowners filed their objections to the awards on April 28, 1972, sending copies of those pleadings to the attorney of record for Brazos. No formal citations were issued and served, but Brazos concedes that it received copies of the objections through the mail. On June 28, 1974, Brazos wrote the District Clerk about each of these cases, tendering surety bonds in the amount of both awards, and requesting a return of the cash deposits ($637.50 and $2,890.00). No pleadings were filed in connection with the substitution of the surety bonds for the cash deposits, and no orders were entered. Even though the electric power transmission line was built, these condemnation cases lay dormant on the docket of the trial court for over 11 years after the objections were filed. On October 6, 1983, the landowners’ attorney requested trial settings. On October 13, 1983, Brazos filed motions, asking the Court to dismiss the landowners’ objections and adopt the awards of the Special Commissioners as the Judgments of the Court. After a nonjury hearing and the filing of trial briefs by all parties, the trial court granted Brazos’ motions and entered judgments on May 2, 1984, which adopted the awards of the Special Commissioners as the Judgments of the District Court. The landowners appeal. We affirm.

Brazos cites Denton County v. Brammer, 361 S.W.2d 198 (Tex.1962), and Moss v. State, 361 S.W.2d 408 (Tex.Civ.App.—Eastland 1962, no writ). It appears clear that the trial court relied upon the holdings in those two cases. Those holdings are also binding upon this court.

This Court said in Moss v. State, supra at 409:

No citation was ever issued or served. When (the landowner) filed objections to the award of the Commissioners, the condemnation proceedings became a cause pending.... It was (the party who filed objections) burden to have citation issued and served. Until (the condemning authority) was served with citation, it was under no legal obligation to go to trial.

The Supreme Court’s majority opinion in Denton County v. Brammer states the applicable rules, supra at 200:

While the condemnor, as plaintiff, had the burden of proving all the essentials necessary to show a right to condemnation, (authorities omitted) and had the burden of going forward to trial, it was under no legal obligation to do so unless and until it had been served with citation. (Emphasis added)
Since the duty devolves upon the (party objecting to the award) to cause the issuance of citation, it seems logical to say that he must act with reasonable diligence_ (The party who filed objections), so far as the citation was concerned, occupied the same status as a cross-plaintiff, and having failed to act with diligence and having failed to offer any explanation for such failure, he abandoned his objections and exceptions as a matter of law.

Denton County and Moss were based upon the statutory requirement found in TEX.REY.CIV.STAT.ANN. art. 3266 which was repealed in 1983 by the enactment of the TEXAS PROPERTY CODE. See Acts 1983, 68th Leg., Chapter 576, effective January 1,1984. At the time the award was entered and objections filed, Article 3266 provided that if either party to the condemnation proceeding is dissatisfied with the decision, he may “file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes.” While the present statutory provision [TEX.PROP.CODE ANN. sec. 21.018 (Vernon 1983 Pamphlet)] reads somewhat differently, the code states that it was a revision of the statutes “without substantive change.” Consequently, the holdings in Denton County and in Moss remain valid, and they determine our decision in this case.

Appellants argue that this is a “case of first impression” and that those two authorities are distinguishable in that those landowners had drawn down the awards, whereas these appellants have not. That distinction is present, but the Supreme Court did not make it the test. In fact, the landowners in Denton County allowed two years to elapse before they withdrew the award and then waited another five years before requesting a setting. Even after the award was withdrawn, the Supreme Court said the burden remained on the condemnor of “going forward to trial”; however, “it was under no legal obligation to do so unless and until it had been served with citation.” Denton County v. Brammer, supra at 200. The dissenting opinion and the concurring opinion did not take issue with this holding, and it is binding upon us.

All three points of error are overruled.

The judgments of the trial court are affirmed.

ON REHEARING

The Supreme Court discussed Denton County v. Brammer, supra, in an opinion which was announced after our decision in this case. See Amason v. Natural Gas Pipeline Company, 682 S.W.2d 240 (1984), where the unanimous opinion quoted Brammer ⅛ statement that the condemnor “was under no legal obligation to (go to trial) unless and until it had been served with citation.” In Amason the landowners secured a waiver of citation from the con-demnor. The landowners in this case did not secure a waiver of citation from Brazos, and no pleadings were filed by Brazos which would constitute an appearance waiving the necessity of citation.

The motions for rehearing are overruled.

      . The first tract (No. 11-84-187-CV) contains 375 acres, and Mrs. Gussie Hilburn was awarded 1637.50 by the Special Commissioners. The second tract (No. 11-84-188-CV) contains 691 acres, and Mrs. Gussie Hilburn and her brother, Henry Ford Davis, were awarded $2,890.00 by the Special Commissioners.

      . Identical points of error were filed in each case. They are quoted in full:
      POINT OF ERROR NO. 1: The trial court is in error because granting relief to the Con-demnor by the entry of judgments without trial or opportunity to be heard, even if many years after the suit in condemnation is filed, is erroneous in that it improperly places a burden on the Condemnees who have filed objections to the taking and contest the right of the Condemnor to take the property and have maintained such position by refusing to take the money deposited at the taking; as the Condemnor never absolved itself from the burden of the whole case and the burden of going to trial.
      POINT OF ERROR NO. 2: The trial court is in error in that it has abused its discretion in refusing to proceed to trial in the cases at bar in that a formal burden of citing is no more or less onerous than the responsibility on the whole case and the burden of going to trial and a balance of equities and the full discretion of the Court should allow both parties to proceed to resolve these issues by trial rather than by summary proceedings.
      POINT OF ERROR NO. 3: The trial court is in error because the taking of the property by the Condemnor in this case has been done without ever having proved the right to take, although same has been an issue at all times, and no waiver of that issue has occurred in that the Condemnee has, at all times, refused and to this date refuses to take down the cash deposit and having elected to do so, the Con-demnor has taken the property in violation of the United States Constitution and Constitution of Texas.


author: SUMMERS, Chief Justice.

text:
    Robert Hayden BROWN, Appellant, v. Patricia Ann Lee Brown CARROLL, Appellee.
    No. 12-83-0014-CV.
    Court of Appeals of Texas, Tyler.
    Nov. 29, 1984.
    Thomas K. Boone, Dallas, for appellant. Robert Fairchild, Fairchild, Price, Russell & Thomas, Center, for appellee.
   SUMMERS, Chief Justice.

Robert Hayden Brown, Movant/Appel-lant (Brown), brought this action for a permanent injunction seeking to prohibit his former wife, Patricia Ann Lee Brown Carroll, Respondent/Appellee (Carroll), from allowing his children to use the surname of their stepfather. Brown also sought to modify his visitation rights with his minor children. The trial court denied the injunction and refused to modify the visitation rights. Brown appeals from the court’s denial of the injunction. We reverse that portion of the trial court’s judgment denying injunctive relief and remand the case with instructions that the trial court grant the permanent injunction as hereinbelow ordered.

Carroll and Brown were divorced in Cherokee County, Texas. Carroll was named managing conservator of their two children, Robert Brown, Jr. and Wendee Brown, who were seven years old and four years old, respectively, at the time of the divorce. Carroll married John W. Carroll and, sometime between 1978 and 1980, they moved to Florida. The children moved to Florida with their mother and stepfather and Brown moved to Dallas, Texas. While in Florida, Carroll asked Brown if he would consent to a legal name change of the children from Brown to Carroll. Brown refused to give his consent. Ño petition for a legal name change has ever been filed on behalf of the children. The Carrolls moved to Shelby County, Texas, and by order dated December 31, 1980, this cause affecting the parent-child relationship was transferred from the District Court of Cherokee County to the District Court of Shelby County. The children were enrolled in the Center Independent School District in Shelby County in August 1981. The children began to use the name Carroll while in the Center schools on their registration cards, report cards, attendance sheets, and in the classrooms. A teacher and two principals of the Center school system testified that the children’s teachers and classmates knew them by the name of Carroll. There is also evidence that the children were using their stepfather’s surname in other instances. The mother and stepfather testified that the children repeatedly asked them if they could use the name Carroll instead of Brown. Both told the children that they could use whichever name they wished, i.e., Brown or Carroll.

Brown sued to enjoin Carroll from allowing the informal name change of the children. The trial court refused to grant the permanent injunction on the grounds that (1) the court had no jurisdiction to grant the injunction, (2) there was no evidence that Patricia Brown Carroll was allowing the children to use their stepfather’s surname rather than their legal name, (3) if granted, the injunctive order would be vague, ambiguous, and unenforceable, and (4) the children’s informal use of their stepfather’s surname did not impinge on any right or protectable interest of Robert Brown.

Brown argues in his third point of error that the trial court erred in holding that it had no jurisdiction to issue the requested injunction. Article 5, Section 8 of the Texas Constitution provides that “the District Courts shall have ... original jurisdiction and general control over ... minors under such regulations as may be prescribed by law.” The Family Code gives the district courts broad power over children involved in divorce proceedings and other instances, including the power to grant or deny a legal name change. See Chapter 32, TEX.FAM.CODE ANN. (Vernon 1975). The District Court of Shelby County, Texas, acquired jurisdiction over the Brown children on December 31, 1980, when this cause was transferred from the District Court of Cherokee County to the District Court of Shelby County. Thereafter, on April 27, 1982, this action for a permanent injunction and modification of visitation rights was filed in the District Court of Shelby County. The District Court of Shelby County had complete jurisdiction to protect the welfare and best interest of the children, as well as the pro-tectable interest of the children’s father. Therefore, the court had the power to issue an injunction. In the Interest of Baird, 610 S.W.2d 252 (Tex.Civ.App.—Fort Worth 1980, no writ); see also Newman v. King, 433 S.W.2d 420 (Tex.1968). Appellant’s third point of error is sustained.

Having determined that the trial court had jurisdiction to grant the injunction, we must now decide whether- the injunction should have been issued. In reviewing the ruling of the trial court on the permanent injunction, we do not determine whether the trial court abused its discretion in denying the application. Rather, we review the entire record as in any other case on appeal to ascertain whether or not the trial court erred. Electronic Data System Corp. v. Powell, 524 S.W.2d 393 (Tex. Civ.App.—Dallas, 1975, writ ref’d n.r.e.). In his first point of error Brown argues that the trial court erred by failing to find that Carroll was allowing the minor children to use their stepfather’s name because that fact was established as a matter of law or by the great weight and preponderance of the evidence. Carroll testified at the hearing as follows:

A: They [the children] know their name is Brown, and I have told them they are free to use whatever name they want to use, I will love [them] just the same.
Q: So you are letting them use any name they choose to use, is that correct?
A: Yes.

It is clear from her own testimony that the mother of the children was allowing them to use their stepfather’s name and any finding by the trial court to the contrary is against the great weight and preponderance of the evidence. Appellant’s first point of error is sustained.

Brown asserts in his sixth point of error that the trial court erred in denying the injunctive relief because the informal name change of the children was against their best interest and in derogation of his interests in preserving the children’s use of their legal name and his parental relationship. It is undeniable that a father has a protectable interest in having his children bear his surname. Courts will exercise their power to change a child’s name reluctantly and only where the substantial welfare of the child requires the change. Newman v. King, 433 S.W.2d 420 (Tex.1968); see also Annot. 92 A.L.R.3d 1091 (1979). By preserving the child’s use of his legal name, the courts are protecting the relationship between the father and child and promoting the affiliation of the child with the father’s family. Bennett v. Northcutt, 544 S.W.2d 703 (Tex.Civ.App.—Dallas 1976, no writ). With regard to what is in the best interest of Robert Brown, Jr. and Wendee Brown, the record reflects that they expressed a desire to use the surname of their stepfather. However, the children’s preference is not controlling in determining whether it is in their best interest to allow a name change. See Bennett, 544 S.W.2d at 708. We hold that it is not in the best interest of the children for the mother to allow the use of the stepfather’s name without a legal name change pursuant to Chapter 32 of the Family Code. The evidence is clear that the mother had ample opportunity to prohibit the children from using their stepfather’s surname, and the trial court should have issued a mandatory injunction ordering the mother to instruct the children to use their legal name. The failure of the trial court to grant the injunctive relief was error. Appellant’s sixth point of error is sustained.

The trial court also refused to grant the injunction on the ground that the order would be vague, ambiguous, and unenforceable. Brown contends in his fourth point of error that this holding of the trial court was reversible error. We agree. While it is true that an injunction will not issue if the enforcement of the writ will require continuous and burdensome judicial supervision, see 31 Tex.Jur.2d Injunctions § 27 (1962), mere difficulty in drafting and enforcing an injunction are not sufficient grounds to bar its issuance. Southwestern Newspapers Corp. v. Curtis, 584 S.W.2d 362 (Tex.Civ.App.—Amarillo 1979, no writ). Appellant’s fourth point of error is sustained.

That portion of the trial court’s judgment denying injunctive relief is reversed and remanded to the trial court. The trial court is instructed to order the issuance of a permanent injunction ordering Patricia Ann Lee Brown Carroll to refrain from using any other surname for the children other than their legal surname, namely Brown, and that she instruct the children that they use their legal surname.


author: REYNOLDS, Chief Justice.

text:
    Gary Michael PFEFFER, Appellant, v. The STATE of Texas, Appellee.
    No. 07-84-0235-CR.
    Court of Appeals of Texas, Amarillo.
    Nov. 29, 1984.
    Discretionary Review Refused March 13, 1985.
    Charles L. Rittenberry, Amarillo, for appellant.
    William Baumann, County Atty., Amarillo, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   REYNOLDS, Chief Justice.

Appellant Gary Michael Pfeffer brings this appeal from the trial court’s order denying him habeas corpus relief from constructive confinement, which he sought, to prevent being placed twice in jeopardy. The relief was sought following the declaration of a mistrial over his objection during his trial for the offense of driving while intoxicated when an impaneled juror was held to be disqualified, and the setting of the cause for another trial while he is subject to the conditions of a bond.

With two grounds of error, appellant presents the contention that the State’s attempt at a second prosecution for the same offense is a violation of his constitutional guarantee against double jeopardy because the trial court wrongfully perceived that a juror’s Class C misdemeanor theft conviction, brought to the court’s attention after the trial commenced, operated as an absolute disqualification of the juror and mandated a mistrial. Disagreeing, we affirm the court’s denial of habeas corpus relief.

Appellant was charged by information with the offense of driving while intoxicated. On 2 August 1984, a jury was impaneled and sworn, appellant pleaded not guilty, and the adduction of evidence began. Following the testimony of several witnesses called by the State, the county attorney notified the court that one of the impaneled jurors had been convicted of a Class C misdemeanor theft. The court questioned the juror, found that she had been so convicted in 1976 and was absolutely disqualified and, over appellant’s objection, sua sponte declared a mistrial.

The disqualification voiced by the court is contained in two statutes, which provide, inter alia, that:

(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:
2. That he has been convicted of theft or any felony;

Tex.Code Crim.Proc.Ann. art. 35.16(a)(2) (Vernon Pamp. Supp.1966 to 1983), and that:

No juror shall be impaneled when it appears that he is subject to the second ... cause of challenge in Article 35.16, though both parties may consent.

Tex.Code Crim.Proc.Ann. art. 35.19 (Vernon Pamp. Supp.1966 to 1983). This article is entitled “Absolute Disqualification.”

In this connection, appellant acknowledges that less than four years ago in Frame v. State, 615 S.W.2d 766 (Tex.Cr. App.1981), our Court of Criminal Appeals, adhering to articles 35.16 and 35.19 and the long-standing determination in Hooper v. State, 126 Tex.Crim. 118, 70 S.W.2d 431 (Tex.Cr.App.1934), that the challenge for cause because of a conviction for theft “include[s] and comprehend[s] ... any misdemeanor theft,” held that a conviction for misdemeanor theft constitutes an absolute disqualification for jury service. Frame v. State, supra, at 769. Nevertheless, appellant argues that since the Frame holding was premised on a twenty-year-old misdemeanor theft conviction occurring before the 1974 Penal Code was enacted, the holding does not control where, as here, the misdemeanor theft conviction happens after the 1974 Penal Code became effective on 1 January 1974. This obtains, appellant submits, because a section contained in the 1974 Penal Code, which was not addressed in Frame, specifies that:

(c) Conviction of a Class C misdemean- or does not impose any legal disability or disadvantage.

Tex.Penal Code § 12.03(c) (Vernon 1974). An explanation of the section is written in this language:

Section 12.03(c) ensures that conviction of a Class C (justice court) misdemeanor does not deprive the defendant of his rights to vote, hold public office, serve on a jury, or other rights of citizenship.

Searcy and Patterson, Practice Commentary, 1 Tex.Penal Code Ann. 404 (Vernon 1974).

At the outset, it is observed that jeopardy attached when the jury was impaneled and sworn to try the cause and, once jeopardy attached, appellant had the right to have his guilt or innocence determined by that jury unless, in the absence of his consent to the mistrial, a new trial was mandated by some form of manifest necessity, Torres v. State, 614 S.W.2d 436, 441 (Tex.Cr.App.1981), such as the absolute disqualification of an impaneled juror. Ex parte Bronson, 158 Tex.Crim. 133, 254 S.W.2d 117, 121 (1952). Because he is subject to the conditions of a bond pending retrial, appellant is restrained in his liberty in the sense that the writ of habeas corpus may be utilized by him to raise his claim of exposure to double jeopardy by a retrial on the existing information, and he may appeal from the denial of his claim before his retrial. Ex parte Robinson, 641 S.W.2d 552, 553-55 (Tex.Cr.App.1982).

The appeal, then, poses this novel question: Following the effective date of the Penal Code’s section 12.03(c) pronouncement that a “[c]onviction of a Class C misdemeanor does not impose any legal disability or disadvantage,” is a person, who has been convicted of a Class C misdemean- or theft, absolutely disqualified to serve as a juror by that conviction under the disqualifying language of articles 35.16 and 35.19 as interpreted fifty years ago in Hooper v. State, supra, and recently articulated in Frame v. State, supra?

At first light, the Penal Code’s section 12.03(c) pronouncement, with its explanation, and the procedure code’s articles 35.-16(a)(2) and 35.19, as interpreted, appear to conflict insofar as they apply to a person’s qualifications to serve on a jury. Having application to the same general subject, the statutes, though enacted at different times without any reference in the section to the articles, are considered in pari materia and, consequently, will be construed together to give effect, if possible, to all of the provisions. Ex parte Harrell, 542 S.W.2d 169, 171-72 (Tex.Cr.App.1976).

Section 12.03(c) is a statute addressing in a broad and general manner the effect of a conviction of a Class C misdemeanor offense on the rights of citizenship, whereas articles 35.16(a)(2) and 35.19, as interpreted and applied, speak specifically to the effect of a conviction of any misdemeanor theft, including a Class C misdemeanor theft, on the qualifications of a person to serve as a juror. In construing the penal code statute, section 3.06 of the Code Construction Act becomes applicable. Tex.Penal Code Ann. § 1.05(b) (Vernon 1974). That section reads:

If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.

Tex.Rev.Civ.Stat.Ann. art. 5429b-2, § 3.06 (Vernon Supp.1984).

Construing the statutes together conformable to the rules of construction, the most reasonable construction of them is that a person’s conviction of a Class C misdemeanor does not deprive him of his rights of citizenship, except for the right to serve as a juror when he has been convicted of a Class C misdemeanor theft, which absolutely disqualifies him from jury service. We so hold.

This construction harmonizes and gives effect to all of the statutes. If it could be reasonably argued for an irreconcilable conflict in the provisions when applied to jury service, the construction reconciles the conflict by giving the special statutes regarding qualifications of a person to serve on a jury prevalence over the general statute regarding a person’s rights of citizenship. There is no legislative expression that the later enacted section 12.03(c) with its general provision is intended to prevail over the specific provisions of articles 35.16 and 35.19; indeed, it may be said that the Legislature manifested the intent that the long-standing absolute disqualification remain in force, for at the same session the Legislature, presumed to act with full knowledge of court decisions on the subject, Townsend v. State, 427 S.W.2d 55, 62 (Tex.Cr.App.1968), did not change the absolute disqualification existing under articles 35.16 and 35.19 when amending many other articles of the Code of Criminal Procedure. Had the Legislature intended a change in the law, it would have been a simple matter to state it when either enacting section 12.03(c) or amending the Code of Criminal Procedure.

It follows that the trial court, upon discovering that the impaneled juror was absolutely disqualified, had no viable alternative other than to declare a mistrial, even though appellant objected. Ex parte Bronson, supra, 254 S.W.2d at 121; Johnson v. State, 129 Tex.Crim. 162, 84 S.W.2d 240, 242 (1935). In these circumstances, appellant is not exposed to double jeopardy by a second prosecution on the pending information. Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 1073, 35 L.Ed.2d 425 (1973). Appellant’s grounds of error are overruled.

The judgment is affirmed.


author: DIAL, Justice. CADENA, Chief Justice, CANTU, Justice,

text:
    CITY OF SAN ANTONIO, Appellant, v. SAN ANTONIO INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 04-83-00192-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 30, 1984.
    Rehearing Denied Jan. 4, 1985.

      Crawford B. Reeder, Asst. City Atty., San Antonio, for appellant.
    Anthony Nicholas, Joseph E. Scuro, Nicholas & Barrera, San Antonio, for ap-pellee.
    Before CADENA, C.J., and CANTU and DIAL, JJ.
   OPINION

DIAL, Justice.

This is an appeal from summary judgment in favor of the San Antonio Independent School District (SAISD) exempting it from paying certain charges for gas and electric service from the utility owned by the City of San Antonio.

The City purchased the utility in 1942 pursuant to the authority of TEX.REV. CIV.STAT.ANN. art. 1111-1118 (Vernon 1963). To finance the purchase, the City entered into a trust indenture. The indenture and the applicable statutes provided that the utility would be managed by a self-perpetuating board of trustees not appointed by the City. The indenture also created a lien on the properties and revenues of the system. The indenture and the statutes provided for payment to the city from the utility in three components pertinent to the instant suit:

(1) A payment in lieu of ad valorem taxes.
(2) Reimbursement for the City’s payments for gas and electricity and expenditures for street lighting extensions and improvements.
(3) An additional payment in an amount that when added to (1) and (2) above would total 14% of the utility’s gross revenues.

Starting in 1975, SAISD, twelve other independent school districts in Bexar County, and the Bexar County Hospital District, either escrowed or withheld 14% of their monthly bill from the City’s utility. The City sued for declaratory and monetary relief. The facts were undisputed and stipulated. All parties filed motions for summary judgment except SAISD. The City’s motion for summary judgment was granted, and all others were denied.

The school and hospital districts appealed, and the Eastland Court of Appeals reversed the trial court. San Antonio Independent School District, et al v. City of San Antonio, 614 S.W.2d 917 (Tex.Civ.App.—Eastland 1981, writ ref’d n.r.e.). The appellate court held that TEX.REV. CIV.STAT.ANN. art. 1446c, § 48 (Vernon 1980) applied to the City. This resulted in exempting the school and hospital districts from paying rates which “may be used to make or to cover the cost of making payments in lieu of taxes to the municipality by which the public utility is owned.” The court rendered judgment for all appellants except SAISD. Since SAISD had not filed a motion for summary judgment, judgment against it was reversed, and the cause remanded. Application for writ of error was refused, n.r.e. On remand, the trial court granted summary judgment for SAISD declaring,

Section 48 of article 1446c exempts (SAISD) from paying gas and electric utility charges to (City) which are based upon rates which are set so as to allow the following as items of expense of the system’s operation:
(a) lieu of tax payments by the utility to the City;
(b) reimbursement by the utility to the City for the latter’s gas and electrical expenses and expense of additions to the City’s street lighting and traffic lighting systems, and
(c) profit made by the City from the utility’s operation, as that term is defined in San Antonio Independent School District v. City of San Antonio, 550 S.W.2d 262 (Tex.1977); although under the terms of the Trust Indenture only part of the payments made by the System to the City is in lieu of taxes, as set forth in Section 48. This Summary Judgment is granted solely because of the holding by the Eastland Court of Appeals.

The City now brings this appeal contending that the trial court erred in granting the summary judgment in favor of the SAISD since the Eastland decision had not actually addressed the issue as to what constitutes payments “in lieu of taxes” under article 1446c, § 48. The City argues that § 48’s exemption pertains only to payments made in lieu of ad valorem taxes, thus, narrowly construing the language of § 48 and preserving the school district’s liability for those charges attributable to expenses other than the reimbursements for lost taxes.

The City concedes that the Eastland decision did resolve that § 48 was applicable to San Antonio’s gas and electric utility, and with regard to that issue, the doctrine of the law of the case applies. The City, however, urges that the trial judge’s decision to apply § 48’s exemption to all three component payments as “in lieu of taxes” based solely on the Eastland decision was error since such an interpretation went beyond the scope of the Eastland holding.

The issue as to what constitutes § 48’s “payments in lieu of taxes” had been presented to the Eastland Court in a cross-point, however, it was not specifically addressed in that Court’s decision. Likewise, the City’s motion for rehearing to that Court of Appeals and subsequent writ of error and motion for rehearing to the Supreme Court re-asserted the issue but were denied without opinion.

The doctrine of “the law of the case” is that principle where, the determination of a question of law having already been made on a prior appeal to a court of last resort, such determination will generally be held to govern the case throughout all of its subsequent stages, including a retrial and subsequent appeal. Transport Insurance Co. v. Employers Casualty Co., 470 S.W.2d 757, 762 (Tex.Civ.App.—Dallas 1971, writ ref’d n.r.e.); Houston Endowment, Inc. v. City of Houston, 468 S.W.2d 540, 543 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n.r.e.). Questions of law expressly decided in a prior appeal are subject to the doctrine.

Since the court neither expressly or by necessary implication determined the meaning of § 48’s “payments in lieu of taxes,” we hold that the Eastland decision is inapplicable to that issue now before this court.

We sustain City’s first point of error.

The City’s second point of error is that the trial court erred in failing to limit § 48’s application solely to the “in lieu of taxes” component of the utility’s payments to the City. In its counterpoint, SAISD argues that all of the component payments made pursuant to the indenture are “in lieu of taxes” because if the City did not receive those payments, it would have to raise the money it derives from them by taxation. The City rebuts this contention by presenting numerous sources of City revenues, the payments from which are not considered taxes. Indeed, such was the holding in Bexar County v. City of San Antonio, 352 S.W.2d 905 (Tex.Civ.App.—San Antonio 1962, writ dism’d), where this Court expressly held that sewer charge revenues which render a profit to the City were not taxes. Id. at 908. The mere fact that revenues are put into a general fund and used for public purposes, as were the payments in the case at hand, does not necessarily make them taxes.

The City’s position is further supported by strong caselaw. In San Antonio Independent School District v. City of San Antonio, 550 S.W.2d 262 (Tex.1977), the Supreme Court specifically addressed the issue as to what constitutes payments “in lieu of taxes.” In that case, which involved the same trust indenture as the case at bar, all the school districts in San Antonio sought a declaratory judgment against the City for the refund of portions of gas and electric payments they had paid in previous years. Their argument was similar to that presented in the present case. The schools contended that since the 14% indenture payment authorized by article 1113a was factored into the municipally-owned utility’s rates, their payments as a part of that 14% was a tax on them prohibited by the Constitution. The Supreme Court denied the school districts’ claims of exemptions and clarified the nature of the indenture payments. The court recognized that the first component is a payment in lieu of ad valorem taxes that would be received if the utility was not municipally owned, which the City is entitled to receive under TEX. REV.CIV.STAT.ANN. art. 1113. Component payment number (2) is free service which the City is entitled to receive under the same statute. The cash payment in number (3), was held to be a reasonable profit which the City is entitled to receive under TEX.REV.CIV.STAT.ANN. art. 1113a, which was enacted in 1949. Id. at 263-64. Thus, the whole 14% is not a payment in lieu of taxes.

Accordingly, we reverse the trial court’s judgment and render as to the meaning of the phrase “payments in lieu of taxes” found in article 1446c, § 48. Our interpretation of that phrase is that it includes only payments made by the utility to the City to offset the City’s lost ad valorem tax revenues.

The City may retain all funds received by it or the utility from SAISD under the Interim Payment Agreement heretofore entered into by the parties except the fractional equivalent of the monies paid by the utility to the City in lieu of ad valorem taxes for the period in question.

CADENA, Chief Justice,

concurring.

We are not, in this case, required to give controlling effect to the prior decision of the Eastland Court as the law of the case if such decision is clearly erroneous. See Barrows v. Ezer, 624 S.W.2d 613 (Tex.Civ. App.—Houston [14th Dist.] 1981, no writ), Connecticut General Life Insurance Co. v. Bryson, 148 Tex. 86, 219 S.W.2d 799 (1949).

Article 1446c, section 48 provides only that “payments in lieu of taxes” shall not be considered “an expense of operation” of a city owned utility in determining the rates to be charged for the provision of service to a school district or hospital district. If the Eastland Court held that “payments in Lieu of taxes” as that term is used in section 48, to include any payments other than those payments representing the amount of taxes paid by the previous private owners of the system, such holding is clearly erroneous and lacks support in the law and in the facts of this case.

Before discussing the egregious nature of the error, it should be pointed out that we are dealing with a decision of another intermediate appellate court, and not with a decision of the Texas Supreme Court.

Prior to 1949 article 1113 prescribed the only financial benefits enjoyable by a city which owned its own utility system as the result of such ownership. The statute provided for free service to the city. This provision for free service was followed by a provision requiring that the rates charged for service be sufficient to pay (1) operation, maintenance, depreciation, replacement, betterment and interest charges; (2) interest and principal on outstanding bonds; and (3) outstanding indebtedness of the system. The statute then proscribed the use of revenue from the system for any other debt, expense or obligation of the city, except payments in lieu of ad valorem taxes paid by the private owners of the system. In brief, the statute provided, in three separate sentences for:

1. Free service to the city.

2. Payment of principal and interest on outstanding bonds.

3. Payment of certain debts enumerated in the statute.

4. Payments in lieu of ad valorem taxes.

■ Even the most casual reading of the statute compels the conclusion that the provision for free services is separate and distinct from the provision for payments in lieu of ad valorem taxes. The statute authorized free service and payments in lieu of taxes.

Article 1113a, enacted in 1949, authorizes the transfer to the city from the revenues of the utility system in any amount authorized by the indenture securing the payment of revenue bonds. The emergency section of the 1949 enactment recites that the increased costs of labor and material required for the rendition of municipal services “requires that all sources of municipal revenues be immediately availed of by” cities which own utility systems.

It is manifest that article 1113a was enacted for the purpose of permitting cities which owned utility systems to provide, by indenture, for payment to the general funds of such cities from the revenues of the utility, in addition to payments in lieu of taxes already authorized by article 1113. It must be concluded that not all payments made to a city from revenues of utilities owned by such city constitute “payments in lieu of ad valorem taxes.” If the provision for payments in lieu of ad valorem taxes which is found in article 1113 includes payments of the amount of ad valorem taxes which would be paid if the utility were privately owned as well as all other payments which might be made to the city from the utility’s revenues, then the Legislature, in enacting article 1113a in 1949, was doing a useless thing.

The indenture between the City of San Antonio and the holders of gas and electric revenue bonds contains a “flow of funds” provision which assigns priorities to the purposes for which the utility’s revenues may be applied. The revenues are to be used according to the following priority:

1. Payment of operating expenses.

2. Payment of principal and interest on outstanding bonds.

3. Reimbursement to the city for loss of taxes which the city would have received if the utility were privately owned.

4. Payment of an amount equal to 12V2 % of gross revenues into an Improvements and Contingencies Fund.

5. After the payment of 12½% of gross revenues to the Improvement and Contingency Fund, the following payments are to be made to the city’s fund, to the extent available from the remaining revenues:

a. A ■ sum sufficient to reimburse the city for all amounts paid to the utility by the city during the year for gas and electric services used by the city for municipal purposes.

b. A sum in cash which when added to (1) the payment in lieu of taxes (2) the amount of reimbursements for electric and gas services during the year, and (3) the amount expended during the year for additions to the street and traffic lighting systems, will total an amount equal to 14% of the gross revenues of the system.

It is significant that the “flow of funds” provisions of the indenture establish five priorities. The provision for payment in lieu of taxes has a number 3 priority, with only the provision for payment of operating expenses and payment of principal and interest on bonds having a higher priority. The provisions for free service (reimbursement for amounts paid for service and additions to the street and traffic lighting systems) and for the payment of additional sums in cash which, when added to the payment in lieu of taxes and the costs of free service, will total 14% of the gross revenues of the city are assigned the lowest priority, number 5. The payments into the general fund under priority number 5 are expressly conditioned to be made until the payment required by priority number 4 (payment into Improvement and Contingencies Fund) has been made. Thus, the payment in lieu of taxes has a higher priority than the payment into the Improvement and Contingencies Fund, while the other payments into the general fund have a lower priority. The indenture, like article 1113, makes a clear distinction between payments in lieu of taxes and other payments into the city’s general fund.

The phrase “payment in lieu of ad valo-rem taxes paid by private owners” is free from ambiguity. It refers to payment for taxes, based on the value of the thing taxes, imposed by a governmental agency in the exercise of the taxing power. While it is conceivable that a privately owned utility, in addition to paying ad valorem taxes imposed by the city, might agree to, in effect, make an additional payment of 14% of the utility’s gross revenues to the city, such additional payment would not be a payment of ad valorem taxes. A payment in addition to taxes is not a payment in lieu of taxes. The payment in addition to taxes would necessarily result from the civic mindedness and generosity of the private owner, or from a contract, but it would not arise from the exercise by the city of its power to levy ad valorem taxes. In the case before us, the city receives the additional payments because of the provisions in the indenture, authorized by article 1113a, and not as revenues derived from the exercise of the taxing power. If the indenture did not provide for such additional payments, the city could not, by exercising its taxing power, require that the payments be made.

In San Antonio Independent School District v. City of San Antonio, 550 S.W.2d 262, 264 (Tex.1977), our Supreme Court held that the benefits received by the City of San Antonio, in addition to payments in lieu of taxes and free services, represented, under articles 1113 and 1113a constitute a profit realized by the city as a result of its ownership of the gas and electric systems. The decision of the Eastland Court cannot be reconciled with this holding, unless we are prepared to accept the indefensible theory that making a profit constitutes a payment in lieu of ad valorem taxes. The benefit results, as the Supreme Court pointed out, from the fact that the city owns the utility. If the utility were privately owned, the city could not exact such payment by exercising its taxing power.

The school district argues that the payments in dispute must be classified as payments in lieu of taxes because, in the absence of such payments, the city would have to impose taxes in order to raise an equivalent amount of revenue. This argument is completely unpersuasive. The notion, if accepted, would compel the conclusion that all revenue received by a city, including such things as fines levied by municipal courts and revenues realized from the sale of surplus city property, represents a payment in lieu of taxes.

Article 1113 makes a clear distinction between the receipt of free services and payments in lieu of taxes. The indenture entered into by the City of San Antonio and holders of gas and electric bonds issued by the city clearly recognize the distinction. Since, as the Supreme Court has held, the city is entitled to make a profit from its ownership of the gas and electric systems, payment of such a profit to the city from the revenues of the utility system cannot be classified as a payment in lieu of taxes, since the city would not receive such revenues as taxes if the system was privately owned.

It is true that section 48 of article 1446c uses the term “payments in lieu of taxes” rather than “payments in lieu of ad valo-rem taxes,” the phrase used in article 1113. Rendition of free services and the payment of a profit to the owner of a utility cannot be classified as payments in lieu of taxes, ad valorem or otherwise. A city could not compel, by exercise of the taxing power, a privately owned utility to render free service to the city. A city could not, by exercise of its taxing power, compel such private owner to forego a right to make a profit and, instead, pay such profit to a non-owner. Since a city lacks the power to exact such benefits from a private owner as part of his obligation to pay taxes, its receipt of such benefits from a utility owned by it cannot be classified as payments in lieu of taxes. Need we ask the question: In lieu of which taxes are such benefits received?

There is nothing in the language of section 48 of article 1446c which suggests that “payments in lieu of taxes” was intended to include all benefits received by a city because of its ownership of a utility system. “Payments in lieu of taxes” must be taken to refer to those taxes which the city would receive if the utility system were privately owned. To interpret the phrase as referring to all benefits received by a city because of its ownership of a utility would be to impute to the legislature a complete unfamiliarity with the English language. It can be conceded that “taxes” is a broad term, but under no conceivable theory can it be expanded to include benefits and revenues which the city would be powerless to exact from a utility which is privately owned.

If the Eastland Court held that “payments in lieu of taxes” includes free services and the realization of a profit from the owner of a utility, the decision is “clearly erroneous” and should not be applied to this case as “the law of the case.”

CANTU, Justice,

dissenting.

Today a majority of this court bows to the dogged reluctance of the appellant City’s refusal to accept appellate finality and we are treated to the application of a new twist to the doctrine of the law of the case. That doctrine as applied today transforms the prior result into the law of that case and the result in this appeal, the majority pronounces, becomes the law of this case.

I think judicial honesty would be best served if both simply disagreed and registered their disagreement with the holding of the Eastland Court of Appeals instead of fantasizing that our brethren in Eastland were incapable of recognizing issues being presented, not once but twice. The import of both opinions is that the decision of the Eastland Court was based upon an erroneous or incomplete application of the law necessary to a plenary disposition of the matter before it. If the majority believes the prior opinion to be erroneous it should exhibit the honesty and candor one can at least attribute to the City’s posture in the instant appeal.

Justice Dial, after alluding to the doctrine, makes the following statement: “Since the court neither expressly or by necessary implication determined the meaning of § 48’s ‘payments in lieu of taxes,’ we hold that the Eastland decision is inapplicable to that issue now before this court.” Such a statement can only mean that the Eastland Court was not authorized to arrive at a final decision on the merits without addressing every contention raised by the parties. This court, as does every appellate court, often disposes of points deemed unnecessary to a final determination by simply not addressing them. A disposition sub silentio does not mean that the court has not given the contentions raised due consideration. To the contrary, addressing unnecessary contentions rarely adds to the jurisprudence of this state regardless of the parties’ desire for an advisory opinion.

To conclude that the Eastland Court, and the Texas Supreme Court as well, did not expressly or by necessary implication address the contention now once again urged is hogwash. The Supreme Court’s action on the application for writ of error and subsequent motion for rehearing can hardly be classified as a failure to consider the contentions urged simply because the court refused to write on the matter. In my opinion the contentions reurged were just as conclusively overruled by both courts’ refusal to address them. See Goodman v. Olsen, 365 So.2d 393, 396 (Fla.App.1979) [... when a point which was not discussed in an appellate opinion is necessarily determined by the opinion, the doctrine of law of the case is applicable].

The doctrine has often been addressed by Texas courts and defined as that principle which states that questions of law decided on appeal to a court of ultimate last resort will govern the case throughout all of its subsequent stages, including a retrial and a subsequent appeal. Barrows v. Ezer, 624 S.W.2d 613 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ); Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.—Tyler 1975, writ ref’d n.r.e.); Houston Endowment, Inc. v. City of Houston, 468 S.W.2d 540 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n.r.e.). The doctrine has also been stated to mean that the holdings announced in a former appeal constitute the law of the case; that matters were either presented to or directly passed upon or which were in effect disposed of on a former appeal to a court of civil appeals will not again be passed upon by that court. Allied Finance Co. v. M.T. Shaw, 373 S.W.2d 100 (Tex.Civ.App.—Fort Worth 1963, writ ref’d n.r.e.).

In Roberts v. Armstrong, 231 S.W. 371 (Tex.Comm’n App.1921, holding approved, judgment adopted), the court in quoting from Wells on Res Adjudicata and Stare Decisis, § 6B, stated:

It is a well-settled principle that the question of law decided on appeal to a court of ultimate resort must govern the case in the same court and the trial court, through all subsequent stages of the proceedings, and will seldom be reconsidered or reversed, even if they appear to be erroneous.
The application of this rule, however, contemplates that the facts on the second appeal shall be substantially the same, or rather, perhaps, that they shall not be such as to affect materially the legal questions involved under the first appeal.

It is undisputed that the facts on the second appeal [the instant one] are identical to those in the first appeal. It is further undisputed that the legal questions involved are the very same ones presented in the first appeal. Nor is there any serious contention, other than by the City in its bid to have the same matter once again litigated, that the decision of the Eastland Court is clearly erroneous. Even the majority is unwilling to agree that clear error exists in the Eastland opinion in view of the notation of no reversible error granted by the Supreme Court.

This very court in Exxon Corp. v. Butler, 585 S.W.2d 881 (Tex.Civ.App.—San Antonio 1979, writ dism’d, 619 S.W.2d 399), speaking through Justice Murray, recognized that the doctrine applies irrespective of whether the decision of the former appeal is right or wrong. See also, Chicago & N.W. Transportation Co. v. United States, 574 F.2d 926 (7th Cir.1978). Thus, even if the majority disagrees with the prior holding and desire to express the opinion that the Eastland Court fell into error, the doctrine mandates that this court refuse to reconsider what has already been decided. This is so not because of a limitation on the power of this court, but because of public policy’s concern with a finality to litigation. Elliott v. Moffett, 165 S.W.2d 911 (Tex.Civ.App.—Texarkana 1942, writ ref’d w.o.m.). Because the Eastland Court is a court of coordinate jurisdiction, comity considerations require this court to refuse to rehear that which has once before been advocated and rejected. People v. Watson, 57 A.D.2d 143, 393 N.Y.S.2d 735, 738 (1977). The doctrine of the law of the case is designed to prevent just such an anomaly as would result from this court telling the trial court that it had erred in obeying the mandate of the Eastland Court. See Chicago & N.W. Transportation Co. v. United States, supra, at 930.

The United States Court of Appeals for the Seventh Circuit in Chicago recognized the long term effects of the problem which the majority now creates. It stated:

The fact that earlier review was by a different court does not alter our conclusion. If anything, that fact makes the case for application of the doctrine even stronger, for principles of comity come into play. If we now held that the commission erred in obeying the mandate of the three-judge court, a third court reviewing the commission’s order following our remand might hold that we in turn were wrong. That result would be prevented only by the same doctrine of law of the case, aided by principles of comity. See Gulf Research & Development Co. v. Schlumberger Well Surveying Corp., 98 F.Supp. 198, 200-201 (D.Del.), petition for mandamus denied sub nom; Gulf Research & Development Co. v. Leaky, 193 F.2d 302 (3rd Cir.1951), affd per curiam by an equally divided court, 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668 (1952); see generally, Hoffman v. Blaski, 363 U.S. 335, 345, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1969) (Frankfurter, J., dissenting), that should govern us now.

574 F.2d at 930.

The law of the case must control the disposition of this case in the absence of some unusual circumstance or some compelling reason. See Chicago & N. W. Transportation Co. v. United States, supra. None appears of record and the majority can point to none other than to intimate that the Eastland Court did not finish the job or that upon subsequent reflection egregious error cries out from the prior holding.

While this court may reserve to itself the right to disagree with the decision of the Eastland Court as it may be applied to another case, yet it is well settled that a judgment of an appellate court in a ease becomes the law of that particular case, and is not subject to review on a second appeal. Cf., Rail N Ranch Corp. v. State, 441 P.2d 786, 7 Ariz.App. 558 (1968).

I find the following language in Rail N Ranch Corp. v. State, supra, appropriate:

As we view the doctrine of law of the case, a policy objective is to provide for the orderly processing and expeditious resolution of controversy in a particular law suit. This policy would be frustrated if it were to be insisted that only the opposing parties in a particular appeal were to be bound as between themselves by an appellate decision rendered in a case. Multiple appeals in a single suit are not uncommon, and if decisions rendered on appeal were to be binding only as between the opposing parties on appeal, instead of orderly procedure, we would have a procedural maze with many cul-de-sacs.
And, were we to attempt to completely undo what we did [or a court of coordinate jurisdiction did for us] in the previous proceeding, we would be violating the fundamental principle of res judicata which we are seeking to satisfy, in that we would be holding against the position of parties to the previous appellate proceeding who have not been heard from in this appeal. And in any event, such judicial wheel-spinning would appear to be the very thing this doctrine is designed to avoid.

441 P.2d at 790.

I would affirm the judgment of the trial court insofar as it acts in obedience to the mandate of the Eastland Court and decline to give the City an advisory opinion on matters not properly before this court. I respectfully register my dissent.

      . Article 1446c, § 48.
      No payments made in lieu of taxes by a public utility to the municipality by which it is owned may be considered an expense of operation for the purpose of determining, fixing, or regulating the rates to be charged for the provision of utility service to a school district or hospital district. No rates received by a public utility from a school district or hospital district may be used to make or to cover the cost of making payments in lieu of taxes to the municipality by which the public utility is owned.

      . The Supreme Court's refusal of a writ of error does not make the judgment of the intermediate court the judgment of the Supreme Court. When an application for writ of error is refused, the judgment of the intermediate appellate court remains the operative judgment in the case. Merchandise Mart, Inc. v. Marcus, 515 S.W.2d 663 (Tex.1974).
      The opinion of the Eastland Court of Appeals on which the school district relies reflects only one holding by the Eastland Court. The only question discussed in the opinion is whether the term "public utility" found in article 1446c, § 48, applies to a municipally-owned utility. The only holding reflected in the opinion is that § 48 applies to a municipally-owned utility. The only meaning of a term discussed in the opinion is the meaning of the term "utility.” Nowhere in the opinion did the Eastland Court make any statement which indicates that it was concerned with the meaning of the term "payments made in lieu of taxes.” San Antonio Independent School District v. City of San Antonio, 614 S.W.2d 917 (Tex.Civ.App. — Eastland 1981, writ refd n.r.e.). It has been held that the only issues settled by the Supreme Court’s refusal of an application for writ of error are those “which are found in the opinions [sic] of the” intermediate court. Sierra Club v. Austin Independent School District, 489 S.W.2d 325, 330 (Tex.Civ.App. — Austin 1973), rev’d, other grounds, 495 S.W.2d 878 (Tex. 1973).

      . Acts 1949, 51st Leg., p. 940, ch. 513, § 2. As enacted in 1949, article 1113a applied only to cities having a population of 200,000 or more. It was amended in 1953 to make the provisions applicable to cities having a population of 10,-000 or more. Acts 1953, 53rd Leg., p. 422, ch. 122, § 1.

        . Since the registering of my dissent to the original majority opinion written by Justice Dial, Chief Justice Cadena, now candidly and in a "no holds barred" approach lambastes the holding of the Eastland Court of Appeals in his concurring opinion. Although Justice Dial’s opinion can no longer accurately be referred to as a majority opinion, collectively both opinions do a disservice to the doctrine of the law of the case. Insofar as both opinions refuse to adhere to the doctrine, I will continue to refer to them collectively as “the majority.”

      . Chief Justice Cadena’s belated attempt to claim error in the Eastland holding, however, falls short of the prerequisite to invoking the exception to the doctrine. The exception applies only where the decision on a former appeal was clearly erroneous. Connecticut General Life Insurance Co. v. Bryson, 148 Tex. 86, 219 S.W.2d 799 (1949); Miller v. Winn, 28 S.W.2d 578 (Tex.Civ.App. — Fort Worth 1930, writ refd). I refuse to ascribe to the observation made by Chief Justice Cadena that the Supreme Court by refusing to grant writ of error with the notation "no reversible error” was incapable of recognizing error of such “egregious nature.” If the error was so egregious it would have been readily identifiable without the need for further reflection. I further question the authority of the majority to decline to adhere to the doctrine when only one justice ascribes to the “erroneous holding” exception.

      . The City of San Antonio in its Supplemental Motion for Summary Judgment and throughout the appellate history of this case has openly displayed its intentions, viz;
      Although the facts in this case are undisputed and are the same for purposes of the court’s decision as when the Eastland decision was rendered the City still asserts the same legal contentions, arguments, and authorities as it has always asserted. This is not because of mere stubborness, but because of two factors about the Eastland decision: (1) The decision was wrong. It did not address the issues raised by the parties’ briefs; it cited law not cited by either party and not relevant to the proper determination of the case; and it recited as ‘undisputed facts’ matters not true and not even in the record. (2) It also failed to decide the City’s alternative point, raised by crosspoint in City appellee’s brief upon which point a decision was necessitated by the decision on the portion of the case which the court determined adversely to the City. Although the omission was called to the East-land Court’s attention on Motion for Rehearing, that court summarily (in one week) denied such motion without comment....

      In short, City wishes a relitigation of its principal contentions for the reasons contained above and City especially wants an express judicial determination of its alternative point.... This point has never been expressly determined one way or the other by any court.

      .Even the City admits that the Eastland opinion impliedly decided the point it now urges on appeal but urges that such decision by implication should not be binding as law of the case inasmuch as the basis for the decision cannot be ascertained from a reading of the opinion.

      . The City categorizes the Eastland opinion as “bizarre and arcane."

      . The first appeal was taken to this court but was subsequently transferred to the Eastland Court in November 1980 by virtue of a Supreme Court docket equalization order. The Eastland Court thus delivered an opinion we were originally obligated to deliver.

      . The City persists in its brief on appeal: "In order for the court to understand why the City is still litigating the case instead of merely bowing to the Eastland decision it is felt that the issues in the first trial and appeal should be outlined because they are not revealed by the Eastland opinion....”