No. 05-02-01678-CV

IN THE COURT OF APPEALS

FIFTH DISTRICT

DALLAS, TEXAS

_______________________________________________

EVAN BROWN, Appellant

VS.

ALCATEL USA, INC., Appellee

_______________________________________________

On Appeal from the 199^th District Court of Collin County, Texas

APPELLANT'S REPLY BRIEF

Martin L. Peterson

Bar No. 15838600

P. O. Box 368

Meridian, Texas 76665

(254) 386-6075

Attorney for Appellant

No. 05-02-01678-CV

IN THE COURT OF APPEALS

FIFTH DISTRICT

DALLAS, TEXAS

_______________________________________________

EVAN BROWN, Appellant

VS.

ALCATEL USA, INC., Appellee

_______________________________________________

On Appeal from the 199^th District Court of Collin County, Texas

APPELLANT'S REPLY BRIEF

TO THE HONORABLE COURT OF APPEALS:

Pursuant to Tex.R.App.P. 38.3, Appellant desires to reply to the arguments made by Appellee in its Brief as follows:

First Issue

A. Partial Performance and Consideration

Acknowledging that it provided no contemporaneous consideration to Brown to induce him to enter into the agreement ⁽¹⁾, Alcatel continues to seek to characterize the agreement as having blossomed into an enforceable unilateral contract. It asserts that it was merely seeking to change the terms of Brown's employment, which terms Brown "accepted" because he did not quit working. Yet, as the very case Alcatel cites demonstrates, Alcatel (like Brown & Root) never offered Brown anything more in exchange than the illusory promise of continued employment. See In re Halliburton Co., (Tex.App.- Houston [14^th Dist.] No. 14-00-0464-CV) (unpublished) at fn. 6. Thus, no contract could arise by virtue of Alcatel's part performance of the employment agreement nor Brown's acceptance of the benefits of the employment agreement, because Brown had the option to discontinue his employment at any time (just like Johnson in Johnson v. Breckenridge-Stephens Title Co. was not bound to utilize the title company's services) .

While Alcatel could not thereafter escape an obligation to pay Brown for his part performance of the separate employment agreement ⁽²⁾, Alcatel gained nothing under the agreement by virtue of Brown's choice to continue to work for it. The applicable legal principle is as follows: "While from the very nature of a unilateral contract, mutuality of obligation is not essential, such is the case only where some other consideration for the option passed to the promisor at the time of making the promise." Johnson v. Breckenridge Stephens Title Co., 257 S.W. 223, 225 (Tex.Comm.App. 1924, judgm't adopted). Brown no more formed a contract with DSC by accepting payment for his services than Breckenridge-Stephens Title Company formed a contract with Johnson by accepting payment for the service it provided.

In Cherokee Communications, Inc., Skinny's sought to terminate a lease agreement it had entered into which allowed another to install and maintain pay telephones at Skinny's stores. Skinny's claimed that it could terminate the lease before its stated or promised expiration because Cherokee was not obligated to install the phones or could opt to terminate the lease earlier. Skinny's claimed this fact deprived the contract of a mutuality of obligation or consideration. The court found, however, that once Cherokee had actually incurred the expense of installing the phones this constituted an "equitable" consideration passing to Skinny's (because it could then start receiving part of the income derived from those paying to use the phones and its business might otherwise be enhanced by the presence of the phones) such as to render the entire contract valid and enforceable. The case actually exemplifies an instance of promissory estoppel rather than enforcement of an unilateral contract. Cf. Bailey v. City of Austin, 972 S.W.2d 180, 193 (Tex.App.- Austin 1998, pet. denied).

This situation differs from the at-will employment context- where each party merely does what they have already agreed to do. Brown's performance under the employment agreement conferred no new or additional benefit on Alcatel, remote or otherwise. Likewise, the fact that Brown managed to earn his paycheck through part performance does not mean he became burdened with the detriment of loss of his inventive skill. Brown received no "equitable" consideration, only that which was already promised to him before the agreement was ever drafted, namely, his wages and the other benefits commonly received by Alcatel employees in his position. ⁽³⁾

The explanation provided in In re Halliburton Co., 80 S.W.3d 566, 569 (Tex. 2002) also serves to elucidate why there was no acceptance by Alcatel of Brown's promise (to assign his inventions to it if the company would allow him to continue to work for it). The Supreme Court noted that with respect to the arbitration agreement tacked on as a new condition of Myers's employment by Halliburton, both parties became bound to use the arbitration procedure even after termination of the employment. But, in this case as in Light, "the employer was bound only while the employee continued to work." All of Alcatel's promises in the agreement were dependent on Brown's continued employment and thus were illusory in nature. This principle of law has nothing to do with Section 15.50 of the Business & Commerce Code (which is nowhere mentioned in Halliburton).

The utterly ridiculous assertion that this issue is somehow "presumed away" from the recitals in the agreement will not even be addressed by Appellant.

B. Unconscionability

Alcatel seeks to avoid any determination by this Court concerning the one-sided nature of the agreement by stating there is no evidence in the record suggesting it is unconscionable. But, the only thing the Court needs to examine in this regard is the contract itself and the circumstances surrounding its execution. Upon its face the contract shows to have the characteristics set forth in Wade v. Austin, 524 S.W.2d at 86. Nor does Alcatel dispute that it drafted the contract to suit itself and demanded that it be signed without negotiation. ⁽⁴⁾

In her article Inventors of the World, Unite! A Call for Collective Action by Employee-Inventors, 37 Santa Clara L.Rev. 673, 675 (1997), Ann Bartow observes many such contracts are unfair:

[b]ecause employee-inventors may themselves invest extraordinary amounts of time, education, training, intellect, energy, and waking and sleeping thought to the innovative and complex ideas they originate and reduce to practice, and because such employee-inventors may not be able to secure any employment in their areas of expertise unless they sign pre-invention assignment agreements.

Bartow draws the indisputable conclusion that it "is unjust that an employer reaps all of the rewards of a valuable patent * * * but an employee-inventor who has also made a substantial investment in the invention process * * * may not benefit at all."

C. Ambiguity of the Contract

The issue of the ambiguity of the contract was raised and preserved for appellate review, if in no other way, by Brown's pleading. (C.R. I at 36)

Alcatel argues that the record somehow reflects that the contract is not ambiguous. It argues that Brown "had no trouble recognizing that his 'solution' fell within the terms of the contract". It is, of course, immaterial whether its terms had a particular meaning to Brown. Ambiguity is determined by whether the language of the contract "can be given a definite or certain meaning as a matter of law" or whether it is instead "subject to two or more reasonable interpretations" and this can become an issue even if the parties were to assert there was no ambiguity. North Central Oil Corp. v. Louisiana Land & Explor. Co., 22 S.W.3d 572, 575-6 (Tex.App.- Houston [1^st Dist.] 2000, writ denied).

D. Texas Precedents

Alcatel claims that "Texas courts have been enforcing, since at least 1927, agreements [by] . . . employees to assign [to their employer] all inventions [made] by an employee during his employment." It cites in support American Refining Co. v. Gasoline Prods. Co., 294 S.W. 967, 974-5 (Tex.Civ.App.- Fort Worth 1927, writ ref'd), but not a single other Texas case, for such proposition. American Refining is no doubt cited because the court took note of the fact that "[i]t has been held that an employer may, by an express contract with an employee, obtain a right to have transferred to the employer all discoveries made by the employee". But it is a poor choice for Alcatel's claim because the Fort Worth court was examining a patent license agreement (obviously bilateral in nature) and not an employee pre-invention assignment contract like that in question here. Furthermore, that some courts have upheld some contracts dealing with employee inventions does not alone serve to validate the agreement.

In a similar vain effort, Alcatel would have the Court believe that "the Texas Supreme Court has overruled the authority that Brown relies on to urge this Court to" determine whether the agreement conforms to public policy. The outcome in Castellow (one of the cases relied upon by Brown) was abrogated in Lawrence v. CDB Services, Inc., 44 S.W.3d 544 (Tex. 2001). But this was only because, in the context of evaluating waivers of rights under the workers compensation statute, the high court found that judicial bodies were too "ill-equipped to evaluate the likely real-world consequences of invalidating the agreements." But, in Lawrence the Supreme Court assuredly did not discard the idea that courts can and should decide whether to hold other types of contracts void on public policy grounds. Furthermore, the court was careful to point out that the petitioners had not leveled "any claim . . . of fraud, duress, accident, mistake, or failure or inadequacy of consideration" (as is present here). 44 S.W.3d at 553. This Court can safely evaluate the consequences of enforcing the contract involved in this case and balance the competing interests without having to quantify and measure intangible and speculative benefits vis-a-vis each other. Rather, it is plain that Alcatel would receive the full value of all of Brown's inventions (potentially worth millions of dollars) and Brown would receive nothing but the illusory promise of employment and restrictions both on his inventive skill and his right to perform similar work for others after leaving DSC.

E. Evidence of Breach

Alcatel asserts that the summary judgment evidence establishes that there was an invention "conceived" by Brown as of April, 1997. Yet there is no evidence anyone has ever seen such invention or used such invention. Alcatel says that Brown did not present evidence to throw into dispute the existence of an invention. But, throughout the litigation Brown consistently argued over and over again that the solution was a mere intangible idea stored in his brain. For example, his motion for summary judgment (C.R. I at 53) filed on July 3, 1997 stated:

DSC contends that it owns an idea or 'solution' in Evan Brown's mind, which if it works, will allow the user of a software program to convert machine executable binary code into a high-level source code using logic and data abstraction.

In his second motion for summary judgment he added: "The idea in Brown's mind, however, is merely an idea and not an invention. Moreover, Brown has not . . . 'conceived' an 'invention'." (C.R. I at 200-01). These arguments were supported by summary judgment proof. In his affidavit Brown stated:

The idea which I have developed is only in my mind. There is no computer program, computer model or any other tangible representation of [it]. Moreover, I have not written the idea down on paper. * * * The idea needs a great deal of further development and refinement before there is any chance of it functioning. It must be meticulously documented and thoroughly tested before I can even determine if my theory will work in practice. At this point, I have nothing more than an abstract idea to a perplexing problem." (C.R. I at 247-8).

Furthermore, after he spent several hours trying to put the idea into a tangible, useful form, in an attempt to comply with court-ordered "discovery"(C.R. II at 492-4), he acknowledged that his idea was still just a dream and certainly nowhere near the status of an "invention" or in the words of Alcatel: "Defendant admitted that the Solution did not work . . . that he had run into an issue . . . and that his idea for solving it had failed". (C.R. II at 513). No matter how hard Alcatel might like to say the representations made earlier by Brown constitute the truth or something that would render Brown liable for breach of contract, Tex.R.Civ.P. 166a cannot serve to create something that is not there and Alcatel had no right to rely upon any contrary "promises" supposedly made by Brown.

Alcatel might argue that the affidavit filed with Brown's motion for summary judgment was technically not part of his response to Alcatel's subsequent motion (and thus might not prevent judgment from being rendered forthwith against him). ⁽⁵⁾ But, it clearly was an affidavit "on file at the time of the hearing" and thus should have been considered by Judge Henderson in ruling on Alcatel's motion. Moreover, even if it could be argued this was not an issue expressly presented "by written motion or in an answer or any other response" ⁽⁶⁾, the character of Alcatel's proof was not thereby changed. Brown's procedural shortcoming (if any) does not change the reality of the situation.

"A plaintiff moving for summary judgment on its claim must establish its right to summary judgment on the issues expressly presented to the trial court by conclusively proving all the elements of its cause of action as a matter of law. * * * Even in the absence of a response by the non-movant, [the appellate court must] consider whether the proof is insufficient to establish as a matter of law the specific grounds for summary judgment relied on by the movant." Barrios v. Enterprise Leasing Co. of Houston, 110 S.W.3d 185, 189 (Tex.App.- Houston [1st Dist.] 2003, no pet.).

It seems obvious that Alcatel must have conclusively proved an invention was made or conceived in order to substantiate its claim that Brown breached the contract. Whether so stated in its motion, this was necessarily a specific ground for summary judgment or issue raised by it. Not surprisingly, in its motion all Alcatel could say was that "Brown claimed that he had developed a method" "that would automatically convert DSC's legacy software into newer portable, higher-level programming languages". (1^st Supp.C.R. at 3). Brown's testimony was only that his ideas reached the stage that he decided he "wanted to pursue it". (1^st Supp.C.R. at 62).

The unvarnished truth is that Brown failed to even conceive a true invention. Alcatel should thus also fail. There is quite simply no evidence whatsoever to support the idea that there is still some hidden invention residing in Mr. Brown's person that can or should, now or ever, belong to Alcatel. This is nothing more than a fantasy manufactured by Alcatel to subsequently justify its aggressive and expensive pursuit of what should be known as Brown's "folly" rather than his "solution". ⁽⁷⁾

Second Issue

Alcatel misapprehends Brown's complaint under his second issue and fails to appreciate the language of the current judgment. It is true that if this Court wholly sets aside the summary judgment, then there will be no issue remaining concerning the breadth or scope of the trial court's judgment (i.e., the point becomes moot). But, this matter is raised upon the assumption that the Court might agree that Alcatel was entitled to some relief.

Essentially Brown urges that even if the Court should determine the agreement was valid, it should nevertheless restructure the relief so as to permit Brown to continue to work upon his "method" free from any concern that Alcatel might try to step in and claim any benefit therefrom and, more importantly, so that Brown will be free to reap the economic reward which might result from such future activity. While the judgment does not accurately describe the "invention" being awarded to Alcatel (since in fact no invention exists or has been developed), its "declaration" that Brown "cannot further develop or market the Solution to anyone other than Alcatel" is certainly broad or ambiguous enough to give rise to future litigation and throws a cloud over any work Brown might thereafter do pertaining to reverse engineering of computer programs.

This is a problem which should be solved by this Court even if it were to determine the agreement obligated Brown to make the disclosure of his idea (as he has done). It must be clarified what Alcatel now owns, and what Brown retains (since he has now left Alcatel's employ). It seems clear that if the current judgment were left untouched Alcatel will claim the result of any future "development" of the idea as belonging to it, even though such future advances, if any, would not have occurred while Brown was its employee.

Third Issue

Brown's concern over the order entered as a so-called discovery-abuse sanction on January 19, 2000 (5^th Supp.C.R. at 2) is well-founded. This is because even if the judgment of April 11, 2003 were to be set aside, the prior order would not simultaneously fall. Presumably it stands on its own and unless challenged by this appeal would become final and binding, although erroneous and seemingly contrary to the judgment (denying relief) which would be entered by this Court. While Brown probably has little to fear from the ambiguous language of the order, once again it portends trouble for him. Furthermore, as a matter of principle, the trial court and all other courts should be made aware of the fallacy of the argument that complete disclosure of a non-invention is required in order for the receiving party to be able to proceed to litigate the ownership of the invention. ⁽⁸⁾

The Supreme Court of Oklahoma in a similar lawsuit correctly held that a discovery order cannot encompass the mere mental concepts of a man. In the name of avoiding trial by ambush, the trial court had no authority to attempt to grant to Alcatel the very relief it sought by its suit. While it turned out that Brown was harmed only to the extent of suffering an involuntary servitude and some expenses rather than loss of an invention, the next party to this type of suit might not be so fortunate.

The court-sanctioned demand that Brown answer an improper interrogatory in an improper way set a very bad precedent. (Cf. C.R. II at 532). For that reason alone, the issue deserves review by this Court. The determination that the discovery process was being "abused" by Brown is as much presented for revision as the choice of sanctions.

Fourth Issue

Whether or not Brown filed any response to Alcatel's motion for an award of attorney's fees as a matter of law, it remained Alcatel's burden to demonstrate that the amount was reasonable and necessary and it remained the duty of the trial court to award only those fees authorized by statute. Mr. Pinker's assertion in his affidavit (2^nd Supp.C.R. at 7) that the amount of fees was reasonable (in his biased opinion) should have been measured by common sense and the tests set forth in such cases as Herring v. Bocquet and Bethel v. Butler Drilling Co. No doubt Mr. Pinker was deluded by his own sense of importance and worth into thinking he and his cadre of associates had performed well and efficiently and deserved what is perhaps a "customary", though very expensive, fee. But that does not change the concept the legislature had in mind in authorizing a prevailing party to recover reasonable fees for legal services.

Alcatel also chastises Brown for taking a "combative approach" to its claim and maintains that Brown was successful in preventing the ordinary and efficient prosecution of the case (by Alcatel). While it is true that Brown may not have been very efficient in his approach to avoiding Alcatel's frivolous claims, this is understandable because Brown was required to proceed without counsel for much of this time. Furthermore, nothing prevented Alcatel from asking for a summary judgment early on in the litigation (except the fact that it could never prove the contract had been breached) and the case was set for trial as early as November, 1997. In truth, Brown has never had any zeal for delay or expense. He moved for a summary judgment within a matter of a few months of the filing of the suit. It was the trial judge's refusal to end the suit at the appropriate time that increased Alcatel's (and Brown's) expenses beyond compare. This is true, even if it were assumed Alcatel was entitled to a summary judgment or a favorable jury verdict. The delay in the resolution of the case was the result of Alcatel's steadfast insistence that disclosure of the information possessed by Brown "was central to litigating the claim of ownership" and had to precede trial, even though it was readily apparent that (1) Brown had made no discovery while employed by Alcatel and (2) his ideas had not been reduced to a tangible, workable form. ⁽⁹⁾

Alcatel correctly notes that the order giving Judge Henderson any authority to act in this case has been omitted from the record. In his brief, Brown noted the order referring the case back to the 199^th District Court (C.R. I at 43) to try to avoid the confusion that might otherwise derive from the May 20, 1997 order (C.R. I at 39) whereby the case was temporarily transferred (between May 20, 1997 and June 18, 1997) to Judge Henderson's court. Brown might also have referenced the transfer order appearing in C.R. I at 42 (since it also landed the case back in the 199^th District Court).

Although omitted from the record, it is not disputed that the "appointment of a judge to hear this case to be made . . . by the presiding judge of the First Administrative Judicial District of Texas" ⁽¹⁰⁾ was, in fact, later made by Judge McDowell (on June 27, 1997). In that order, Judge McDowell stated that "pursuant to Article 74.056, Texas Government Code, I hereby assign: the Honorable Curt Bradley Henderson, Active Judge of the 219^th District Court To the 199^th District Court of Collin County, Texas . . . to hear Cause No. 199-596-97; DSC Communications corp. v. Evan Brown." But this order did not give the 219^th District Court any jurisdiction over the case, though it obviously gave Judge Henderson the authority conferred by §74.059 of the Government Code to act in Cause No. 199-596-97.

Accordingly, it is clear that the 219^th District Judge (in such capacity) had no jurisdiction over this case. ⁽¹¹⁾ Furthermore, jurisdiction is a fundamental ingredient of the validity of the judgment. It is not something which can be waived or "adjusted" for convenience.

The judgment on its face purports to be rendered by a court lacking any jurisdiction over the case. This would appear to be a fundamental error. "Because jurisdiction is necessary for the court to have power to act, it may be questioned at any time . . ." Cotton v. Cotton, 57 S.W.3d 506, 509-10 (Tex.App.-Waco 2001, no pet.). Nor could the actions of Brown or any other party serve to confer jurisdiction upon the 219^th District Court to act. Wilmer-Hutchins Independent School Dist. v. Sullivan, 51 S.W.3d 293, 295 (Tex. 2001) ("A party cannot by his own conduct confer jurisdiction on a court when none exists otherwise.")

In Alexander, the Supreme Court effectively held that where cases are assigned to the judge of a different court, that judge must be extremely careful to sign his judgments in his proper capacity because otherwise the record will not show that the judgment was rendered by the proper court. And we learn from the Supreme Court that (without any exception for clerical error) when "the record does not show that the court with . . . jurisdiction was actually the court which exercised jurisdiction . . ., the cause must be reversed and remanded." Obviously, the Supreme Court was expressing the same thought as Chief Justice Preslar: "a judge is not the court . . . the persons by whom judicial functions are to be exercised are essential to complete the idea of a court". Alexander v. Russell, 682 S.W.2d 370, 376 (Tex.App.- El Paso 1984), rev'd, 699 S.W.2d 209 (Tex. 1985) (Preslar, C.J. dissenting).

Hence, although Appellant would hope that Alcatel would not choose to continue its senseless fight over his brain upon remand, the Supreme Court has already established the interest which would be served by this seemingly wasteful result (if, indeed, final judgment is not rendered by this Court).

Conclusion

The relief sought by Brown should be granted, at least in part.

Respectfully submitted,

_____________________________

Martin L. Peterson

Bar No. 15838600

P. O. Box 368

Meridian, Texas 76665

(254) 386-6075

Attorney for Appellant

Certificate of Service

I hereby certify that a true copy of the foregoing Appellant's Reply Brief was served by hand delivery upon Mr. Eric W. Pinker, Attorney for Appellee, at Lynn Tillotson & Pinker, L.L.P., 750 N. St. Paul St., Ste. 1400, Dallas, Texas 75201 on this 5^th day of January, 2004.

__________________________

1.

¹ As is Appellant's Brief, "agreement" will be used herein to designate the "Employment, Copyright, and Proprietary Information Agreement" alleged to have been breached by Brown.

2. ² See Dodson v. Stevens Transport, 776 S.W.2d 800, 805 (Tex.App.- Dallas 1989, no writ) ("A unilateral contract has only one promisor.* * * The promisee commits himself to nothing."). If Brown was the promisor, Alcatel became obligated only after Brown performed.

3. ³ Alcatel asserts that Brown also received (aside from his salary) "other benefits of employment" and disclosure of "Alcatel's confidential and trade secret information". Appellee's Brief at 19. If this occurred, it was likewise merely the fulfilment of an illusory promise. C.S.C.S., Inc. v. Carter, ___ S.W.3d ___ (Tex.App.- Dallas [No. 05-03-0138-CV] 2003, no pet.).

4. ⁴ In its pleading Alcatel put it this way: "all employees must sign the [agreement]. DSC does not permit people . . . to continue their employment at DSC if they do not sign . . ." (C.R. I at 144; see also 1^st Supp.C.R. at 42).

5. ⁵ This argument will be ironic, since Alcatel itself stated in its motion a desire to "rely upon any affidavit previously filed . . . in this matter . . ." (1^st Supp.C.R. at 4).

6. ⁶ In his response, however, Brown pointed out that his "idea does NOT work and contains no new methods or algorithms" and asserted his idea "does NOT meet the definition of 'conceived'" and specifically observed that "DSC has FAILED to product [sic] any evidence that Defendant's idea qualifies as an invention." (1^st Supp.C.R. at 97-8).

7. ⁷ The means by which inventions come into being is well-described by Professor Odi in his article titled The Tragicomedy of the Public Domain in Intellectual Property Law, 25 Hastings Comm. & Ent. L.J. 1, 17-21 (2002). He draws the distinction sought by Brown between the intangible form of the creative process which Odi denotes as a "mental conception" and the next step- the transformation from the intangible idea conception to a tangible implementation- the true invention.

8. ⁸ Indeed, although Alcatel seems to think it has not received Brown's idea in toto, it has itself demonstrated that anything further was unnecessary because it still achieved a favorable judgment, even without a trial.

9. ⁹ Brown takes this opportunity, however, to acknowledge that he requested more items than necessary be included in the clerk's record. This does not represent an attempt to delay submission of the appeal nor to "ratchet up" the cost of the appeal. The judgment provides for accrual of interest and recovery of a monstrous sum of money. Thus Brown has had no incentive to delay the submission of the appeal. The sooner he knows the outcome of the case, the better. In truth, due to the heavy caseload of this court, it is unlikely that any delay in resolution of the appeal has actually occurred (even though Appellant's Brief was not filed until November 20, 2003 rather than the May 28, 2003 deadline originally established). Any delay occurring prior to May 28, 2003 was attributable to the failure of the trial court to clarify whether it intended to render a final judgment and not something done by Brown. See this Court's Order of May 13, 2003.

Brown foolishly requested inclusion of unnecessary and duplicative items in the Clerk's Record and the production of a Reporter's Record (at all). He also asked for more time in which to file a brief because of a mistaken belief about the need for such items to be in the record. But, this resulted solely from his inexperience with the legal system, summary judgment practice, and appellate practice. The cost of these missteps has been borne by him and not Alcatel, and this Court can see to it that Alcatel is not harmed as a result. Tex.R.App.P. 34.5 (b)(3). Certainly this fact lends nothing to the reasonableness of Alcatel's June 3, 2002 request for attorney's fees.

10. ¹⁰ Referred to in the "Order of Referral" (C.R. I at 43)

11. ¹¹ Nor is this a case where Judge Henderson was merely exchanging benches or hearing a case ("holding court")for another court in Collin County under art. 5, §11 of the Texas Constitution. There is a difference between the two capacities. See Roberts v. Ernst, 668 S.W.2d 843, 846 (Tex.App.- Houston [1^st Dist.] 1984, orig. proc.). Hence, while it may have been immaterial to the court of civil appeals in Gaspard v. Gaspard, 582 S.W.2d 629, 631 (Tex.Civ.App.- Beaumont 1979, no writ) whether Judge Brookshire was acting as the 58^th District Judge or as presiding judge of the 317^th District Court, Alexander required greater clarity in the judgment here for it to be valid. If anything, the judgment in the record appears to conclusively prove that Judge Henderson acted in his capacity as 219^th District Judge rather than as the presiding judge of the 199^th District Court (exactly the opposite of what Alexander holds must be shown).