text:
    Robert Kenneth HARRISON, Appellant, v. Billie Joe (Harrison) COX, Appellee.
    No. 17625.
    Court of Civil Appeals of Texas, Fort Worth.
    May 23, 1975.
    Rehearing Denied June 20, 1975.

      Jennings, Montgomery & Dies, and Elton M. Montgomery, Graham, for appellant.
    Patrick A. Myers, Jacksboro, for appellee.
   OPINION

BREWSTER, Justice.

This is an appeal by Kenneth Harrison from a judgment for $9,000.00 that had been rendered against him on November 8, 1974. The judgment was in favor of Billie Joe Cox.

The parties had formerly been husband and wife. They were divorced by the Jack County District Court on October 27, 1970. The divorce decree awarded custody of their four children to the mother. She has remarried and is now Billie Joe Cox. The divorce decree ordered Mr. Harrison to pay $350.00 a month as child support for his four children, payable on the 15th day of each month starting November 15, 1970.

On August 22, 1974, Billie Joe Cox filed a motion in the divorce case pursuant to Sec. 14.09(c) of Title 2 of the Texas Family Code, V.T.C.A., alleging that Mr. Harrison had not paid the child support as he had been ordered to pay it by the divorce decree and praying that she be awarded a judgment against him for the amount of child support that had been ordered but that had not been paid by Mr. Harrison.

The non jury trial on this matter resulted in the judgment that is being appealed here.

No statement of facts was filed in this Court in connection with this appeal, but the trial court did sign and file findings of fact and conclusions of law.

The trial court found the following facts: that one of the four children, Debra Harrison, 1½ months after the divorce decree, had married and had then moved from her mother’s home; that another child, Calvin Harrison, 11 months after that decree, moved from his mother’s home and has since lived with and been supported by his father or by his father’s folks; that since the date of the divorce decree on October 27,1970, Mr. Harrison has paid only $450.00 of the child support that he was therein ordered to pay; that Robert Harrison, age 10, and Melvin Harrison, age 17, are the two children that were at the time of the hearing still living with their mother; that after the divorce, Mr. Harrison has had some long periods of physical disability, during which periods he was unemployed and Mrs. Billie Joe Cox testified that as far as she knew the father had done the best he could under the circumstances to support the children.

Article 14.09(c) of Title 2 of the Texas Family Code became effective on January 1, 1974. The judgment here was recovered under that Statute.

A large part of the child support payments for which this judgment was rendered had accrued prior to the time Art. 14.09(c) of the Texas Family Code became effective on January 1, 1974.

Mr. Harrison contended in the trial court that the judgment should have been limited to one-half of the $350.00 monthly child support payments that accrued after the effective date on January 1, 1974, of Art. 14.09(c).

The conclusions of law indicate that the trial court arrived at the amount of the judgment by adding all of the child support payments that have accrued since the date of the divorce decree on October 27, 1970, and deducting from that amount the sum that Mr. Harrison had actually paid as child support and further deducting a proportionate part of the monthly payments that accrued during the period following the divorce decree that two of the children were not in fact supported by their mother.

Mr. Harrison’s first point of error is that the trial court erred in awarding the mother of his children a money recovery against him that included child support payments that he had not paid that had accrued under the divorce decree prior to January 1, 1974, the effective date of Art. 14.09(c) of the Texas Family Code.

We overrule this point of error.

This action was brought and the judgment obtained under and by virtue of Art. 14.09(c) of Title 2 of the Texas Family Code.

Article 14.09 of the Texas Family Code, in its entirety, provides:

“(a) Any order of the court may be enforced by contempt.
“(b) A court may enforce an order for support as provided in Rule 308A of the Texas Rules of Civil Procedure or any subsequent version of the rule promulgated by the supreme court.
“(c) On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgments for debts.
“(d) A parent may be compelled to testify fully in regard to his ability to support the child.”

Mr. Harrison’s first contention under that point is that the Legislature did not intend that Subdivision (c) of that Statute apply to child support payments that had accrued prior to January 1, 1974, which was the effective date of the Act. He says that he is correct in that contention because, if the Legislature did intend for it to' apply to child support payments in that category, the law would be unconstitutional as being a retroactive law in violation of Art. 1, Sec. 16 of the Texas Constitution, Vernon’s Ann.St.

Article 1, Sec. 16, of the Texas Constitution provides: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” (Emphasis ours.)

We are convinced that the Legislature did intend that Art. 14.09(c) apply to child support payments that had accrued prior to the effective date of that Act.

Section 4(a) of Title 2 of the Texas Family Code, provides: “ ‘(a) This Act takes effect on January 1, 1974, and governs all proceedings, orders, judgments, and decrees in suits and actions brought after it takes effect, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in an action pending when this Act takes effect would not be feasible or would work injustice. . . And Sec. 4(b) of the Act is as follows: “ ‘(b) Any action or suit commenced after January 1, 1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction.’ ” (Emphasis ours.)

The express recitals of the Family Code just referred to make it apparent that the Legislature intended that the means of enforcement of child support decrees provided for by Art. 14.09(a), (b) and (c) of Title 2 of the Texas Family Code apply to child support payments that had accrued under court decrees prior to January 1, 1974.

Prior to the effective date of Title 2 of the Family Code, the only remedy for collecting child support that had accrued prior to January 1, 1974, was by contempt proceedings that were authorized by Art. 4639a, Vernon’s Ann.Civ.St. The person to whom such support was payable could not prior to that date sue for and reduce the unpaid child support to judgment. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957); McDonald v. Mercantile Nat. Bank at Dallas, 162 S.W.2d 991 (Dallas, Tex.Civ. App., 1942, no writ hist.), and Youngblood v. Youngblood, 163 S.W.2d 731 (Fort Worth, Tex.Civ.App., 1942, no writ hist.).

When Title 2 of the Texas Family Code was enacted, Art. 4639a was expressly repealed by Section 3 of the Act. See Vol. 2, Vernon’s Texas Family Code Annotated, p. 464.

If Sections (a), (b) and (c) of Art. 14.09 of Title 2 of the Family Code were not intended by the Legislature to apply to and afford means of collecting child support payments that had accrued under court decrees prior to January 1, 1974, then with the repealing of Art. 4639a there would no longer be any way to enforce payment of that category of delinquent child support payments.

This is another reason that makes it apparent to us that the Legislature intended that at least Sections (a) and (b) of Art. 14.09 of Title 2 of the Family Code provide that contempt proceedings were still available after the effective date of the Act as a means of collecting unpaid child support payments that had accrued prior to the effective date on January 1, 1974 of Title 2 of the Family Code.

It would be an unreasonable construction to say that Sections (a) and (b) of Art. 14.09 applied to aid in the collection of child support payments that accrued prior to January 1, 1974, but that Section (c) of the Statute did not so apply.

The general rule is that “a new remedial or procedural statute” applies to both pending and future actions. 53 Tex. Jur.2d 55, Statutes, Sec. 29; Walker v. Lyles, 45 S.W.2d 315 (Texarkana, Tex.Civ.App., 1931), affirmed in 124 Tex. 38, 72 S.W.2d 1113, and Brooks v. Texas Employers Insurance Association, 358 S.W.2d 412 (Houston, Tex.Civ.App., 1962, ref., n. r. e.).

Since we have determined that Art. 14.-09(c) is applicable to unpaid child support payments that accrued prior to the effective date of that Act, our next question is: Is that Act then unconstitutional as being a retroactive law and in violation of Art. 1, Sec. 16 of the Texas Constitution?

We hold that it is not unconstitutional.

It is settled that laws which affect only the remedy or procedure are not within the scope of the constitutional prohibition against retroactive laws, unless the remedy is entirely taken away or is so incumbered with conditions as to render it useless. Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905 (1924); Ex Parte Roper, 61 Tex.Cr.R. 68, 134 S.W. 334 (1911); Holt v. Wheeler, 301 S.W.2d 678 (Galveston, Tex.Civ.App., 1957, er. dism.); Commercial Insurance Co. of Newark, N. J. v. Lane, 480 S.W.2d 781 (Dallas, Tex.Civ.App., 1972, ref., n. r. e.), and 53 Tex.Jur.2d 53, Statutes, Sec. 29.

Remedial law or procedural law is the law that pertains to practice and procedure. It is the legal machinery by which the substantive law is made effective. See 52A C.J.S. Law, p. 741.

In 1953, Article 4639a, V.A.C.S., was amended to enable a court to order a parent to make periodic child support payments for the benefit of his child until the child reached 18 years of age. The Statute also provided that the payments could be enforced by contempt proceedings. Prior to this amendment the Statute only provided for such payments until the child reached 16 years of age.

In the case of Du Pre v. Du Pre, 271 S.W.2d 829 (Dallas, Tex.Civ.App., 1954, no writ hist.), it was contended that this amendment could not be made to apply to the support of children involved in divorce cases that were decided prior to the effective date of the amendment, because to so hold would make the law unconstitutional as being retroactive. That court held against such contention saying at page 831 the following: “Point 1 cannot be sustained. The amendment does not give an additional right, but only an additional remedy. The father’s liability for his child’s support is continuing until the child attains his majority. The remedy for the collection of such legal liability of the father, provided for in the amended article, imposed no new legal liability on the father, but merely provided a more effective remedy or means of enforcing the existing legal liability. ‘No one has a vested right in a remedy which is accorded by the law, or in the rules of evidence. “A person has no vested right in any particular remedy, and he cannot insist on the application to the trial of his case, whether civil or criminal, of any other than the existing rules of procedure. Statutes making changes in the remedy or procedure are always within the discretion of the lawmaking power, and are valid so long as they do not deprive the accused of any substantial right, or conflict with specific and applicable provisions of the state or federal Constitutions.” ’ ”

What that Court said in that case about Art. 4639a is applicable here to Art. 14.-09(a), (b), and (c) of Title 2 of the Family Code.

The substantive law that is involved here is set out in Sec. 4.02 of Title 1 of the Family Code as follows: “Each spouse has the duty to support his or her minor children.” And this was the law in Texas prior to the enactment of the Family Code. See Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); Morgan v. Drescher, 219 S.W.2d 488 (Galveston, Tex.Civ.App., 1949, ref., n. r. e.); and Du Pre v. Du Pre, supra.

Article 14.09(a), (b), and (e) of Title 2 of the Family Code only provide the means of enforcing that liability of a parent to support his child. It is a remedial or procedural Statute, as was Art. 4639a, V.A.C.S., that it in part replaces. And for the same reasons stated in the Du Pre case, supra, the enactment and enforcement of Art. 14.-09(a), (b), and (c) does not result in destroying or impairing any vested rights that the father here had.

For the reasons stated, Subsections (a), (b), and (c) of Art. 14.09 of Title 2 of the Family Code are not unconstitutional as being a retroactive law in violation of Art. 1, Sec. 16 of the Texas Constitution.

Mr. Harrison’s alternative argument is that to apply Art. 14.09(c) of the Family Code to the facts of this case, as the trial court did, would be an abuse of the trial court’s discretion because it would work an injustice to him because he was not punishable for contempt (the prior remedy) for his conduct during the period ending January 1, 1974.

We overrule this contention. The appel-lee in her brief argues as facts of the case that Mr. Harrison owns some land in Jack County which he inherited that can be used to pay the child support, and that shortly after the divorce was granted he moved to another state. Since there is no statement of facts, there is no evidence showing whether he does own that land, when he inherited it, or whether he would be in contempt of court for not using the land to pay off the child support. The facts showing his financial status during the periods involved are not before us and the record does not show that the trial court abused its discretion in the respects urged.

Under his second point of error Mr. Harrison argues that Art. 14.09(c) is only applicable in circumstances where Art. 14.09(a) (contempt) would also be applicable. In other words he says that the two remedies are options available to the court, but neither would be justified unless the other was also justified.

We overrule the point and all of the contentions made under it.

We are convinced that the purpose of Art. 14.09 was to provide courts with efficient means of enforcing the payment of child support obligations and that the Legislature intended the different remedies provided by that Statute for the collection of child support to operate independently of each other as well as concurrently. In other words, it is not necessary for the facts in a case to be such that the court would be authorized to hold the defaulting parent in contempt of court before the court could render a judgment against him for delinquent child support payments as provided for in Art. 14.09(c). There are many instances where one of the remedies provided for by the Statute would be fruitless, but where the child support or a part thereof could be collected by means of the other remedy.

In Mr. Harrison’s third and fourth points of error he contends that the trial court erred in rendering a decree for a money recovery against him because there was no evidence and insufficient evidence to support any such recovery.

We overrule both of those points of error.

The appeal is being made without a statement of facts.

The trial court made no findings of fact that compelled it to render a judgment denying a recovery to Mrs. Billie Cox under Art. 14.09(c). And his findings of fact were not such that a conclusion would be compelled that Mr. Harrison was not in contempt of court for failing to make all or a part of the delinquent child support payments. The findings of fact are silent as to whether or not Mr. Harrison had in fact inherited property that could have been used by him to pay the child support as is contended in her brief by Mrs. Cox. The findings of fact are also silent as to whether Mr. Harrison did, soon after the granting of the divorce, move out of the State and then not make his child support payments.

In the absence of a statement of facts this Court cannot determine questions that depend on the sufficiency of the evidence. And, on appeal, omitted findings necessary to support the judgment would be supplied by presumption in support of the judgment. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1944), and Rule 299, Texas Rules of Civil Procedure.

The judgment is affirmed.


source: Caselaw Access Project

author: AKIN, Justice.

license: Public Domain

text:
    ELECTRONIC DATA SYSTEMS CORP., Appellant, v. Douglas W. POWELL, Appellee.
    No. 18500.
    Court of Civil Appeals of Texas, Dallas.
    April 11, 1975.
    Rehearing Denied May 22, 1975.

      J. Edwin Fleming, E. Eldridge Goins Jr., Coke & Coke, Dallas, for appellant.
    Royal H. Brin, Jr., Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   AKIN, Justice.

Appellant Electronic Data Systems (hereinafter called EDS) brought suit to enjoin appellee Douglas W. Powell from violating certain restrictive covenants contained in an employment contract between Powell and EDS. These covenants related to (1) disclosure of EDS business information and secrets; (2) interference in relationships between EDS and its employees; (3) competition with EDS; (4) the use of methods, information or systems developed by EDS or EDS’s customers in competition with EDS; and, (5) contact with EDS’s customers.

The district court entered a temporary injunction directing Powell not to interfere with the relationship between EDS and its employees, not to solicit EDS’s customers whose contracts had been serviced by Powell, and not to compete with EDS in designated locations by using electronic data processing programs systems developed by EDS not generally known in the data processing industry which are used for performing “the function known as prepayment utilization review in processing health-care claims” (hereinafter referred to as PPUR). EDS appealed the trial court’s decree asserting that the relief granted was insufficient to protect its interests. This court affirmed the temporary injunction in Electronic Data Systems Corp. v. Powell, 508 S.W.2d 137 (Tex.Civ.App. — Dallas 1974, no writ), holding that no abuse of discretion was shown.

The case is now before this court on appeal from a permanent injunction entered by the trial court incorporating the identical terms of the temporary injunction. Prior to consideration of EDS’s points of error attacking the permanent injunction entered by the trial court, a discussion of the distinction between the review of a temporary injunction and the review of a permanent injunction by an appellate court is necessary. Powell’s first counterpoint asserts that the permanent injunction granted by the trial court cannot be disturbed on appeal unless a clear abuse of discretion is shown. We cannot agree.

In temporary injunction cases, the only question presented is whether or not the trial court abused its discretion in issuing or refusing the injunction. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968); West Texas Gulf Pipe Line Co. v. Hardin County, 159 Tex. 374, 321 S.W.2d 576 (1959); and Electronic Data Systems Corp. v. Powell, supra. This is true because a temporary injunction is issued to preserve the status quo in regard to the matter in controversy or to prevent irreparable injury to the applicant pending final determination of the case on the merits. The temporary injunction hearing is not a substitute for, nor does it serve the same purpose as hearing on the merits. See Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421 (1959).

Appeals from the issuance or refusal of a permanent injunction, however, are accorded a very different character of appellate review. In reviewing the ruling of a trial court on a permanent injunction, we are not bound by the test of whether or not the trial court abused its discretion. As an appellate court in equity, we must review the contract in question together with all of the evidence to ascertain whether or not the ruling of the trial judge was correct as in any other appellate review. This distinction has been recognized in many cases. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952); Labbe v. Carr, 369 S.W.2d 952 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); and Electronic Data Systems Corp. v. Powell, supra. We conclude, therefore, that although the trial court’s fact findings are subject to review only for legal and factual insufficiency of evidence, the court’s construction of restrictive covenants and its determination of the proper remedy for breach of such covenants are matters of law for our decision. In Elcor Chemical Corp. v. Agri-Sul, Inc., 494 S.W.2d 204 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.), this court broadened a permanent injunction granted by the trial court so as to give effect to the contract between the parties. Likewise, this court in Royal Industries, Inc. v. Sturdivant, 497 S.W.2d 479 (Tex.Civ.App.—Dallas 1973, no writ), narrowed and modified the permanent injunction entered by the trial court. We, therefore, overrule Powell’s counterpoint.

With this distinction in mind, we have reviewed the facts. The present record contains evidence not before us on the temporary injunction appeal. On that appeal we summarized the evidence as follows:

Appellee Douglas W. Powell worked for [EDS] from May 1970 until August 1972, after which he went to work for Systems Resources, Inc., (hereinafter called SRI), . . . EDS employs systems engineers who write computer programs for its customers. There are five industry groups which EDS serves, the two which are material here being the health care and public utilities industries. Powell worked in the health care area for EDS as a systems engineer on a team which developed a ‘system,’ or series of computer programs for processing health care claims involving private or non-governmental contracts. The health care industry was subdivided into the private and governmental sectors. The EDS system which Powell helped to develop, referred to as ‘Prepayment Utilization Review’ or ‘PPUR,’ competes with the ‘Model System,’ which was developed by a governmental agency, and which is employed by Powell’s present employer, SRI. However, at the time of trial, Powell was working in the public utilities area for SRI, an area in which EDS did not even have a data processing system when Powell was employed by it. [Emphasis added.] Electronic Data Systems Corp. v. Powell, supra.

At the trial on the merits the evidence showed that SRI was developing a proprietary system for processing regular business health-care claims. The name “health insurance system” (hereinafter referred to as HIS), has been given to this SRI system. This system is not based on the government’s “model system.” SRI was planning the development of this system before Powell was hired by SRI in August 1972. The HIS system includes automated features and concepts which had been unique to EDS in regular business health-care claims processing system, including PPUR. The record shows conclusively the similarity of features and concepts of the HIS system and EDS National Regular Business System, including features and concepts originally unique to the EDS system. The competition between EDS and SRI in the health-care processing field is direct, widespread and “keen.”

Powell made contributions to the development of the HIS system. Prior to Powell’s EDS employment, he had no data processing experience. After suit was filed, SRI transferred Powell from the health-care field to the public utility data processing area. The application for temporary injunction was heard in May 1973, and a temporary injunction was entered in August 1973. In November 1973, Powell made presentations on the HIS system planned by SRI to both the Kansas City Blue Shield and American Health & Life Insurance Company of Baltimore, Maryland. This activity was in direct competition with EDS. EDS also submitted financial proposals to both companies using the EDS proprietary PPUR system.

A significant addition to the record on the previous appeal is evidence that after the temporary injunction hearing Powell again became active in the health-care field. In September 1973, he was reassigned from the SRI utilities project and again began working full time in Dallas with the primary responsibility of servicing the Kansas City Blue Shield account. In January 1974, Powell was the first person assigned by SRI to the HIS project. Although Powell denies responsibility for having produced the SRI documentation for PPUR, he does admit that he “shared” information about PPUR with another SRI employee. This activity was in direct violation of Powell’s contract with EDS and in violation of the temporary injunction; although the trial court found that Powell did not make any “material” disclosures of information concerning PPUR.

The trial court limited its permanent injunction as it did also its temporary injunction, by defining the word “competing” as:

Conduct by Powell involving the design or use, or providing further information to others on systems for performing in whole or in part, the function known as prepayment utilization review in processing health care claims as that function was designed to be performed by the EDS National Regular Business program on August 15, 1972, where such function designed to be performed by the EDS National Regular Business program exceeds that which is generally accepted and known as the data processing industry for prepayment utilization review program.

Accordingly, the permanent injunction, in effect, restrained Powell from soliciting EDS customers, recruiting EDS employees for a competitor, and from furnishing to others information concerning PPUR, the system which he had helped EDS to develop. The significant question here is whether or not the district court erred in concluding that this relief is all the relief reasonably necessary to protect EDS’s business and goodwill. We hold that the permanent injunction granted provides inadequate protection and fails to give effect to the covenant not to compete.

The law in Texas governing restrictive covenants in employment contracts is well settled. The test for determining the validity of this covenant is whether the restrictions imposed upon the employee are greater than reasonably necessary to protect the business and goodwill of the employer or impose undue hardships on the employee. Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 951 (1960). Such covenants will not be declared wholly void because they are unreasonable as to time, or as to extent of territory covered, or unreasonable as to both time and territory. Instead, a court of equity will enforce the contract by granting an injunction restraining competition for a time and within an area that is reasonable under the circumstances. Justin Belt Co. v. Yost, 502 S.W.2d 681, 685 (Tex.1973). In determining what is a reasonable restraint under the circumstances, the courts will ordinarily consider the question as one of law. Orkin Exterminating Co. v. Wilson, 501 S.W.2d 408, 411 (Tex.Civ.App.—Tyler 1973, writ dism’d); Arrow Chemical Corp. v. Pugh, 490 S.W.2d 628, 633 (Tex.Civ.App.—Dallas 1972, no writ); Toch v. Eric Schuster Corp., 490 S.W.2d 618, 621 (Tex.Civ.App—Dallas 1972, no writ); Markwardt v. Harrell, 430 S.W.2d 1, 3 (Tex.Civ.App.—Eastland 1968, writ ref’d n. r. e.); Chenault v. Otis Engineering Corp., 423 S.W.2d 377, 384 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.); Barrett v. Curtis, 407 S.W.2d 359, 361 (Tex.Civ.App.—Dallas 1966, no writ); Vaughan v. Kizer, 400 S.W.2d 586, 589 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.); Eubanks v. Puritan Chemical Co., 353 S.W.2d 90, 92 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.); Comer v. Burton-Lingo Co., 58 S.W. 969, 970 (Tex.Civ.App.—1900, no writ); and 14 Williston on Contracts § 1636, at 91 (1972).

The permanent injunction granted by the trial court fails to give effect to the covenant not to compete. It grants no more protection than that which EDS is entitled to receive under the common law of trade secrets — the use and disclosure of information not generally known in data processing. Appellant’s business of employing systems engineers to write computer programs for its customers is unique and highly specialized. Its training of Powell included specialized information pertaining to its business as distinguished from general skills and knowledge of the trade. Restraining him from using this information is intrinsically unenforceable so long as he is employed by a competing employer in the health-care field. It would indeed be difficult to determine if Powell were imparting his specialized knowledge to SRI until SRI markets a product resembling closely EDS’s system.

The evidence on the merits reveals that Powell, by participating in the servicing of SRI medicare contracts, preparing SRI proposals to process health-care claims for potential EDS customers, including a proposal to incorporate utilization review into the system operated by SRI for Kansas City Blue Shield, and participating in the development and marketing of an SRI computer system for processing regular business health-care claims, has violated his covenant not to compete with EDS. All of these activities were admitted by Powell.

It was clearly established that the methods and techniques developed by EDS have resulted from a significant investment of time and money. Even in the best of good faith, a former technical or “creative” employee such as Powell working for a competitor such as SRI can hardly prevent his knowledge or his former employer’s confidential methods from showing up in his work. Blake, Employee Agreements Not to Compete, 73 Harv.L.Rev. 625 (1960); Water Services, Inc. v. Tesco Chemicals, Inc., 410 F.2d 163 (5th Cir. 1969). If Powell is permitted to work for SRI in the same area as that in which he was trained by EDS, in-junctive relief limited to restraint of imparting such special knowledge as prepayment utilization review, is likely to prove insufficient. The mere rendition of service in the same area would almost necessarily impart such knowledge to some degree in his subsequent employment. Powell cannot be loyal both to his promise to his former employer, EDS, and to his new obligation to his present employer, SRI. See Eastman Kodak Co. v. Powers Film Productions, Inc., 189 App.Div. 556, 561-62, 179 N.Y.S. 325, 330 (1919). In these circumstances, the most effective protective device is to restrain Powell from working in the same computer field in which he was associated while employed by EDS.

EDS also argues that the confidential information and trade secrets of EDS cannot effectively be protected by permitting Powell to continue employment with SRI in the health-care field of data processing. We agree. The record conclusively shows that SRI and Powell failed to disclose at the temporary injunction hearing that Powell was working in the health-care area. If Powell is permitted to continue in the employment of SRI in the health-care field, there is no way to protect EDS’s business and goodwill. Powell has disregarded his covenant not to compete since pursuing SRI employment. The evidence shows that Powell is assisting SRI to develop a system incorporating features previously unique to EDS. Both Powell and his SRI supervisor testified that Powell is expected to do anything that needs to be done to help SRI. Powell testified: “[D]ue to the size and nature of SRI, that it’s difficult to assign anyone to a project and that be their only work at that time; that an individual has a background in a given area we call upon from time to time to work in that area even though that is not the primary responsibility.” This is confirmed by Powell’s admission that he “shared” information about PPUR with SRI. Indeed, Powell was part of the SRI-HIS team and has made sales representations describing the HIS system in direct competition to EDS. He has been involved with selecting new personnel for employment on the HIS team and has shared his knowledge with them. Powell has furthermore violated his employment contract with EDS by even recruiting an EDS employee to work for SRI in the HIS program development. The conclusion is inescapable that Powell is totally involved in the development of the SRI — HIS system. Powell cannot help but utilize information from EDS’s health-care programs and data systems if permitted to continue in the SRI — HIS systems development effort which parallels EDS’s PPUR system. Throughout Powell’s employment with SRI, Powell has been actively assisting SRI in the healthcare area of data processing in direct competition with EDS, except for a brief period of time after this action was filed. It was only then that Powell was reassigned by SRI to the public utilities field. In view, however, of Powell’s above quoted testimony, it is reasonable to conclude that even then Powell was giving assistance to SRI in the health-care area. Mr. Justice Bateman, speaking for this court, in the appeal of the temporary injunction, placed much emphasis on the fact that Powell was working in the public utilities area and not the healthcare area. The majority of this court concludes, therefore, that the only effective relief for EDS is to restrain Powell from working in the health-care field for SRI or any other employer that competes with EDS.

Accordingly, we reform the judgment of the district court and add to the definition . of “competing” used in the judgment as follows:

Participating, directly or indirectly, individually or as an employee, partner or officer of any person, firm or corporation in any activity involving the development, sale or operation of electronic data systems for processing health care claims; such shall include working for SRI in the health-care area of data processing.

This restraint will be subject to the restriction of three years from August 1972, and two hundred miles from any EDS installation, as provided in the trial court’s judgment.

EDS also contends that the district court erred in finding that any further restraint, other than that granted, would impose upon Powell undue hardship and would be against public policy. We agree. This finding is unsupported in the evidence. In Orkin Exterminating Co. v. Wilson, 501 S.W.2d 408, 411-12 (Tex.Civ.App.—Tyler 1978, writ dism’d), the court stated that “the only hardship that would be suffered by appellees by the enforcement of the restrictive covenant would be that they be required to find other employment in different type businesses.” The court found this to be insufficient to prevent enforcement of a covenant not to compete. Here, Powell would not be required to enter a different type of business, as in Wilson, but will be required to work in a different area of the electronic data processing business. The record here discloses that the healthcare area of electronic data processing is but a small part of the total field of electronic data processing services.

My learned colleagues are of the opinion that the injunctive relief here granted is all that is reasonably necessary to protect EDS and its business. I respectfully disagree. In order to give EDS effective injunctive relief reasonably necessary to protect its business pursuant to its contract with Powell, I would broaden the injunctive relief to enjoin Powell from working in any capacity for SRI or any other EDS competitor.

Judgment modified and affirmed in part, and reversed and rendered as to costs, all of which, both in the trial court and here, are assessed against Powell.


text:
    CITY OF DALLAS, Texas, Appellant, v. Mike GAECHTER et al., Appellees.
    No. 18553.
    Court of Civil Appeals of Texas, Dallas.
    April 24, 1975.
    Rehearing Denied June 5, 1975.

      Alex Bickley, City Atty., Leigh Bartlett, Asst. City Atty., Dallas, for appellant.
    David C. Musslewhite, Stalcup, Johnson, Meyers & Miller, Dallas, for appellees.
   AKIN, Justice.

The City of Dallas brought this suit seeking a mandatory injunction against Mike Gaechter, Gaechter Outdoor Advertising, Inc., and Ross J. Interrante to compel them to remove or lower an advertising sign erected in violation of the Dallas airport zoning ordinance. The trial court, sitting without a jury, denied plaintiff’s requested relief and ordered that the defendants maintain the sign at its present location and height, until the city grants defendants a permit to relocate the sign, on the same property, twenty-five feet nearer to the highway. On granting such a permit, the order requires defendants, at their own expense, either to move the sign to the permitted location or to lower the sign by 17.58 feet. The city appeals, contending that it is entitled to the full relief prayed for. By cross-points, defendants assert that the court erred in granting the city any injunc-tive relief.

The land in question is located at 3760 West Northwest Highway in the city of Dallas. The defendants obtained a permit from the building inspection department of the city of Dallas, to build the sign to a height of fifty feet above the ground level. After erection of the sign, the building inspection department discovered that the sign exceeded the maximum height permitted under the Airport Zoning Ordinance Number 6463 by 17.58 feet. The city did not appeal to the Board of Adjustment of the City of Dallas, as permitted by the Airport Zoning Ordinance, but brought this suit in the trial court instead.

In its findings of fact the trial court found: (1) that lowering the sign 17.58 feet at its present location would destroy its utility and value because the view of the sign would be completely obstructed by other structures; (2) that it would cost defendants $15,000 to remove the sign; (3) that because of the great distance between the sign and the end of the runway at Love Field, the present location of the sign is not a hazard, danger or nuisance; and (4) that the height violation was caused by the negligent mistake of the building inspection department, without any fault of the defendants.

The trial court concluded that it had discretionary equitable power under Tex.Rev. Civ.Stat.Ann. art. 46e-12 (Vernon 1969) and the general law and it additionally had powers coextensive with those of the Board of Adjustment to allow appropriate variances from the requirements of the zoning ordinance.

The city urges that neither alternative offered in the trial court’s judgment is acceptable. First, it contends that this sign should be altered or removed because it is in violation of the Airport Zoning Ordinance and the validity of that ordinance is not questioned by defendants. Secondly, the city contends that to allow the sign to be moved twenty-five feet closer to Northwest Highway would place the sign in violation of the Sign Standards Ordinance of the City of Dallas. In oral argument, the city conceded that the board would have had power to permit erection of the sign in its original location as a variance from the Airport Zoning Ordinance.

Two key questions are presented by this appeal: (1) Was the trial court required by law to grant the mandatory injunctive relief sought by the City?; and (2) Does the district court have power to grant variances concurrent with that of the Board of Adjustment? We answer these questions negatively. Although we hold that the city was not entitled to the mandatory relief sought, we hold that the trial court erred in permitting the sign to remain as a variance to the Airport Zoning Ordinance. Accordingly, we reverse the judgment of the trial court and deny all injunctive relief without prejudice to the city’s right to revoke the build'-ng permit and without prejudice to Gaechter’s right to appeal to the Board of Adjustment to obtain a variance.

MANDATORY INJUNCTIVE RELIEF

The city’s first point of error contends that the trial court erred in failing to grant it a mandatory injunction requiring defendants to remove the sign or reduce its height so it would comply with the provisions of the Airport Zoning Ordinance.

The city reasons that since the defendants are not contesting the validity of the Airport Zoning Ordinance, and violation of that ordinance is shown, the trial court should have granted the requested mandatory injunction pursuant to Tex.Rev.Civ. Stat.Ann. art. lOllh (Vernon 1963) (hereinafter art. lOllh), which provides in part:

In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land is used in violation of this Act or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use, to restrain, correct, or abate such violation, to prevent the occupancy of said building, structure, or land, or to prevent any illegal act, conduct, business, or use in or about such premises.

We hold that article lOllh does not remove all discretion from the trial court with respect to issuance of a mandatory injunction to enforce a zoning ordinance. The facts of the particular case must be considered by the trial court in reaching its decision as to what would be appropriate action for the court to take. City of Snyder v. Cogdell, 342 S.W.2d 201, 203 (Tex.Civ.App.—Eastland 1960, no writ). This holding is supported by Texas case law dealing with mandatory injunctions. A mandatory injunction compelling the alteration, destruction or removal of property is an extraordinary remedy and should be granted with great caution and, ordinarily, only in cases of necessity, where serious injury is being inflicted or will be inflicted. Cabla v. Shockley, 402 S.W.2d 289, 291 (Tex.Civ.App.—Amarillo 1966, writ ref’d n. r. e.); Nolte Irrigation Co. v. Willis, 180 S.W.2d 451, 455 (Tex.Civ.App.—Amarillo 1944, writ ref’d w. o. m.); First State Bank & Trust Co. v. Starr County, 306 S.W.2d 246, 248 (Tex.Civ.App.—San Antonio 1957, no writ). No such necessity or serious injury appears here. The trial court found the sign as presently located is not a hazard or danger or a public nuisance. This finding indicates that defendants might have sought and obtained a variance by application to the board of adjustment if the city had voided or had denied the permit. The city cannot deny defendants that right by applying to the court for a mandatory injunction and contending, as it does here, that the court had no power to allow the variance. Therefore, we conclude that the trial court properly declined to exercise its equitable in-junctive powers by ordering the sign removed before the defendants had the opportunity to secure a variance from the board of adjustment. We do not hold, however, that no mandatory injunction would be proper if such a variance were finally denied, or if defendants had proceeded without ever seeking a permit and/or variance.

In reaching this conclusion we do not accept the argument advanced by defendants that the city is estopped by the action of the building inspector on which defendants relied in erecting the sign. We reject this position for the following reasons: First, as a general rule a governmental unit exercising its governmental powers is not subject to estoppel. The zoning powers of the city that are relevant to this case are police powers granted the city by the legislature, and such governmental functions are not subject to estoppel. See City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex.1970). Second, an estoppel, if allowed in this case, would preclude the Gaechter’s right to appeal to the Board of Adjustment. In City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W.2d 229, 233 (1937), the Supreme Court rejected the idea that a city building inspector was estopped from revoking a permit he issued, with the following observation:

To permit an estoppel simply because the recipient of a permit may act upon some promise of the administrative officer, or even upon the permit itself prior to the expiration of the time for an appeal to the Board of Adjustment, would destroy the right of appeal. [Emphasis added.]

TRIAL COURT’S POWER TO GRANT A VARIANCE

We also hold that the trial court does not have independent power to grant a variance, and therefore we sustain the city’s fourth point of error.

Tex.Rev.Civ.Stat.Ann. art. lOllg (Vernon Supp.1974) provides in § (d) that appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. Section (g) of article lOllg provides the Board of Adjustment shall have the power “to hear and decide appeals where it is alleged that there is error in any order, requirement, decision, or determination made by any administrative official in the enforcement of this Act or of any ordinance adopted pursuant thereto.” Sections (j, k, 1, m) and (n) provide for appeal by writ of certiorari to a district court from a decision of the Board of Adjustment.

In City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 70 (1945), the Supreme Court held that a district court could not exercise powers coextensive with those of the Board of Adjustment while hearing an appeal from the decision of that board. On this point the court said:

The court is not to put itself in the position of the board and substitute its discretion for that of the board. In giving the power to take evidence it was clearly not intended to authorize the court to exercise that power just as if it were the board itself.

The defendants urge that the trial court properly concluded it had powers coextensive with those of the Board of Adjustment to allow variances, on two grounds.

Defendants’ first ground is that if the instant case had come to the district court as an appeal from the Board of Adjustment under Tex.Rev.Civ.Stat.Ann. art. 46e — 11 (Vernon 1969) (hereinafter article 46e — 11), the court could have determined independently whether an exception or variance was appropriate. Defendants’ contention is wrong for the reason that article 46e — 11 is not applicable in this case, as this is not an appeal to the district court on the ground “that a decision of a Board of Adjustment is illegal.”

Defendants’ second ground is that the city had the right to appeal the issuance of defendants’ permit to the Board of Adjustment and that board could have granted a variance. Thus, defendants argue that when the city sought direct relief in the district court, that court “was thereby clothed with the power to do that which the Board of Adjustment could have done had the city exercised its right to appeal to the Board of Adjustment.” As support for this position, defendants cite the case of City of Dallas v. Rosenthal, 239 S.W.2d 636, 642 (Tex.Civ.App.—Dallas 1951, writ ref’d n. r. e.). In that case, Mr. Justice Young, speaking for this court, said in part:

Having pled that the rulings of its Building Inspector and issuance of the permits in question were in violation of zoning laws, the City, perforce of Art. lOllh, Vernon’s Ann.Civ.Stat., was amply authorized to maintain the instant suit filed May 22, 1946; the latter article constituting a cumulative remedy independently and regardless of the provisions of Art. lOllg requiring an appeal to the Board. Art. lOllg requires any person aggrieved, or officer, etc., to appeal from any decision of the administrative officer “within a reasonable time.”

We do not regard that case as standing for the principle that article lOllh clothes the district court with power concurrent to that of the Board of Adjustment. In Ro-senthal, this court held that the issuance of the permit by the building inspector was a decision reviewable by the Board of Adjustment at the instance of the city, and in absence of such a review, the board’s decision was held to be conclusive. This holding was consistent with an earlier decision of this court in the same litigation. In Rosenthal v. City of Dallas, 211 S.W.2d 279 (Tex.Civ.App.—Dallas 1948, writ ref’d n. r. e.), the court held that the building inspector was given certain duties by the legislature and the city council and “his rulings when supported by evidence as in the instant case, cannot be attacked except by appeal as provided in article lOllg.” We construe the “in addition to other remedies” language in article lOllh to mean that the city has the right, as does any aggrieved party, to appeal issuance of the permit to-the Board of Adjustment and in addition to that remedy the city may seek injunctive relief in the district court. This remedy is cumulative, as stated by Justice Young in the later Rosenthal decision. The language “in addition to other remedies” does not mean that whenever the city is dissatisfied with issuance of a permit by a building inspector, it can challenge that permit in the district court by a suit for injunctive relief without appealing to the Board of Adjustment. By seeking injunctive relief, however, the city does not lose its right to appeal issuance of the permit to the Board of Adjustment.

The governing concept in this area is best stated by Chief Justice Dixon of this court in Sparks v. Bolton, 335 S.W.2d 780, 784 (Tex.Civ.App.—Dallas 1960, no writ):

The law is that when a building inspector is acting within the scope of his legal authority, [the] party aggrieved by his decision must exhaust his administrative remedy by appealing to the Board of Adjustment before he may sue in a court for redress. But this rule does not apply if the building inspector is acting under ordinances or orders which are void. Ordinances or administrative orders which are void may be attacked in a direct, independent proceeding in court without resort to appeal to the Board of Adjustment.

The Bolton opinion limits the circumstances in which a party may proceed to district court without appealing to the Board of Adjustment to the situation where the party is complaining that the building inspector acted under a void ordinance. With regard to a complaint of a void permit issued under a valid ordinance, Bolton holds that a “party aggrieved by his [building inspector] decision must exhaust his administrative remedy by appealing to the Board of Adjustment before he may sue in a court for redress.”

We, therefore, conclude that when the applicability of an ordinance is questioned, administrative remedies afforded by article lOllg must be exhausted before redress can be obtained from the courts. Thomas v. City of San Marcos, 477 S.W.2d 322, 325 (Tex.Civ.App.—Austin 1972, no writ). To permit the city the injunctive relief sought without invoking the jurisdiction of the Board of Adjustment would, in effect, deny defendants the right to have the Board of Adjustment pass on the question of their right to a variance, and to have the board’s decision reviewed by the district court.

In summation, we hold the trial court did have discretion to deny the city’s request for a mandatory injunction, but that the trial court does not have powers concurrent with those of the Board of Adjustment to issue variances. We, therefore, reverse the decree of the trial court and render judgment denying injunctive relief without prejudice to the right of the city to appeal the issuance of defendant’s permit to the Board of Adjustment, or to the right of defendants to apply to the board for a variance under the ordinance. So ordered.

      . Defendant Ross J. Interrante is the owner of the property upon which the sign is located and he filed no answer and made no appearance in the trial court. Defendants Gaechter and Gaechter Outdoor Advertising signed a lease with defendant Interrante on December 5, 1972, for construction and maintenance of the sign in question.

      . The issuance of defendants’ permit can be appealed to the board of adjustment by the city. City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W.2d 229, 233 (1937).

      . Indeed, it has been held that petitioners are not entitled to enjoin the use of property in violation of zoning ordinances where the ordinance provides such questions are to be resolved by a board of adjustment — even when the city council has not formed the board of adjustment! Instead, the petitioner should mandamus the city council to perform their ministerial duty of establishing the board of adjustment so petitioners might appeal the building inspector’s issuance of the permit. Sams v. Dema, 316 S.W.2d 165, 169 (Tex.Civ.App.—Houston 1958, writ ref d n. r. e.).


author: RALEIGH BROWN, Justice.

text:
    TEXCALCO, INC., Appellants, v. J. F. McMILLAN dba M & F Well Service, Appellee.
    No. 4786.
    Court of Civil Appeals of Texas, Eastland.
    May 2, 1975.

      Jim R. Wright, for appellant.
    William G. Thompson, Harrell, Thompson & Cook, Breckenridge, for appellee.
   RALEIGH BROWN, Justice.

J. F. McMillan dba M & F Well Service sued Texcalco, Inc., to recover for oil field well services and materials and to foreclose a mechanic’s and materialman’s lien. Trial before the court resulted in a judgment for plaintiff in the amount of $18,798.35, attorney’s fees of $6,266.11, costs of court and for foreclosure of the lien. Texcalco, Inc. appeals.

Texcalco does not challenge the award of $18,798.35 but does challenge the award of attorney’s fees and the foreclosure of the lien.

In its first point of error, Texcalco argues the trial court erred in authorizing foreclosure of the lien because there is no evidence showing to which property any labor or materials were supplied. Its contention is the affidavit and pleadings describe the leasehold estate in three tracts and there is no proof upon which of the three described tracts the labor and materials were furnished.

The affidavit and pleadings describe the leasehold estate as follows:

. . which oil and gas leasehold estate for which a lien is claimed being described as follows:
Oil, gas and mineral lease dated May 26, 1972, from Buryi M. Rodgers, a widow, lessor to Joseph L. Brown, Lessee, covering 503 acres, more or less, being the 2nd, 3rd and 4th Tracts only out of the 823 acres covered by this lease, as follows:
2nd Tract: 163 acres, the East ½ of Section 11, D&DA Lands;
3rd Tract: 20 acres, more or less, that portion of the NW/4 of Section 30, H&TC Ry Co. Lands, Block 1, lying West of Curry Comb Creek;
and
4th Tract: 320 acres, more or less, all of the South ½ of Section 30, H&TC Ry Co. Lands, Block 1,
and as further described by said oil, gas and mineral lease in the Deed Records of Eastland County, Texas, as recorded in Volume 603, page 582-85.”

The record shows that the Rodgers lease was owned by Texcalco. Field tickets and invoices introduced into evidence established that the services performed and the materials furnished were for wells located on the Rodgers lease. There was no evidence that the three tracts comprising the Rodgers lease had been operated as separate units.

Article 5473, Vernon’s Ann.Tex.Civ.St., among other things provides:

“Any person * * * who shall * * furnish * * * materials, machinery or supplies used in * * * drilling * * * any such oil or gas well * * shall have a lien on the whole of such land or leasehold interest therein, * * for which said materials, machinery or supplies were furnished * *

This court in Dunigan Tool & Supply Company v. Burris, 427 S.W.2d 341 (Tex. Civ.App.—Eastland 1968, writ ref. n. r. e.), stated:

“Thus, it is held that under the statutes a lien exists upon an entire tract of land or leasehold interest upon which materials were delivered to or used and if such material was furnished or used on one of two or more tracts which tracts were treated as a unit, the lien exists as to the entire unit.”

Under this record the leasehold interest was the three tracts described in the oil and gas lease. The point of error is overruled.

Texcalco next urges that the judgment of the foreclosure was error because the affidavit failed to show that any labor or materials were furnished to any persons who were members of the class against whom a lien can be claimed. It argues that although the affidavit states labor and materials were furnished at the request of defendant, the affidavit failed to state the capacity in which the defendant acted and failed to state the name of any owner with whom plaintiff contracted. Texcalco contends Article 5476a, V.A.T.S., requires that the owner be designated in the affidavit as owner. We disagree.

Texas is not a jurisdiction which applies a “strict compliance” rule before a lien exists, but rather follows a “substantial compliance” rule. As stated in Whiteselle v. Texas Loan Agency, 27 S.W. 309 (Tex. Civ.App.—1894, writ ref.):

“No material departure from the requirements of the statute can be indulged, without fatal results to the lien; but a. substantial compliance with the terms of the statute is all that is necessary to put the lien in operation, and give it full force and validity. Pool v. Wedemeyer, 56 Tex. 287.”

In the affidavit we are considering, the name of the owner of the oil or mineral leasehold interest is named, although not designated as owner. The trial court in its findings of fact found Texcalco to be the owner. We hold there has been a substantial compliance with Article 5476a, V.A.T.S. The point of error is overruled.

Finally, Texcalco contends the trial court erred in permitting M & F Well Service to recover attorney’s fees under Article 2226, V.A.T.S. Such article in part reads:

“Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, . . . may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such persons or corporation, he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees.”

Texcalco argues that Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814 (Tex.1970), controls the case at bar, regarding the award of attorney’s fees. It points to the following language:

“A suit based primarily upon a contract for a product or for a general service will not authorize an award of an attorney’s fee merely because performance of the contract may require employment of others to render personal services or to perform labor.”

Texcaleo contends that an application of the principles so announced would deny a recovery by M & F of attorney’s fees. We disagree.

The record establishes that M & F Well Service was engaged by Texcaleo to furnish the material and services necessary to complete three oil wells drilled by Texcaleo.

Our Supreme Court in Pacific Coast Engineering Co. v. Trinity Const. Company, 481 S.W.2d 406 (Tex.1972), while interpreting what is meant by “material furnished” stated:

“■ . . where the litigant furnishes not the final complete project, but a part or piece that goes into the final project, then attorneys’ fees will be allowed in a successful suit for the recovery for ‘material furnished’ to the defendant.”

See also Ambox Inc. v. Stewart & Stevenson Services, Inc., 518 S.W.2d 428 (Tex.Civ.App.—Houston (14th Dist.) 1975, no writ). The “material furnished” by M & F to Texcaleo was used by Texcaleo in the completion of its oil wells. M & F was entitled to attorney’s fees for the “material furnished.”

The issue becomes whether Tenneco prohibits recovery for attorney’s fees for the services rendered by M & F. It should be noted that following the Tenneco decision and the decision of Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962), the Legislature amended Article 2226. The amendment added that if a corporation, partnership or other legal entity had a valid claim it might collect attorney’s fees. It also deleted the word personal before the term services rendered.

The court in Van Zandt stated:

“Statutes authorizing a recovery of attorney fees are penal in character and are to be strictly construed. Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332, 333; Washington Fidelity Nat. Ins. Co. v. Williams, Tex.Com.App., 49 S.W.2d 1093, 1094. When strictly construed, the words ‘personal services’ are not as broad and all encompassing as the word ‘services’.
Webster’s Third New International Dictionary gives a general definition of ‘service’ as ‘action or use that furthers some end or purpose: conduct or performance that assists or benefits someone or something: deeds useful or instrumental toward some object.’ The same source defines ‘personal services’ thusly: ‘economic service involving the either intellectual or manual personal labor of the server rather than a salable product of his skill (physicians, architects, and garbage collectors equally sell personal services).’ ”

The court approved language used by the Supreme Court of Utah and differentiated “services” and “personal services” as follows:

“ ‘In ordinary usage the term ‘services’ has a rather broad and general meaning. It includes generally any act performed for the benefit of another under some arrangement or agreement whereby such act was to have been performed. The general definition of ‘service’ as given in Webster’s New International Dictionary is ‘performance of labor for the benefit of another’; ‘Act or instance of helping, or benefiting’. The term ‘personal service’ indicates that the ‘act’ done for the benefit of another is done personally by a particular individual.’ ”

The court having thus distinguished “services” from “personal services” and the Legislature having amended Article 2226, by deleting “personal”, we hold the Legislature intended to avoid some of the problems discussed in Tenneco and Van Zandt in collecting attorney’s fees for services. Caston v. Texas Power & Light Co., 501 S.W.2d 472 (Tex.Civ.App.—Texarkana. 1973, no writ). The “services” rendered by M & F having met the definition of service as announced by Van Zandt, M & F is entitled to recover attorney’s fees.

The point of error is overruled.

We have considered and overruled all points of error. The judgment is affirmed.


author: McCLOUD, Chief Justice.

text:
    Patsy MURRAY et al., Appellants, v. Jenny DAHLEM, Appellee.
    No. 4782.
    Court of Civil Appeals of Texas, Eastland.
    April 11, 1975.
    Randy Taylor, Dallas, for appellants.
    Albert L. Holman, Zimring & Warner, Dallas, for appellee.
   McCLOUD, Chief Justice.

The question presented is whether the court properly denied defendants’ motion for new trial following a default judgment.

Plaintiff, Jenny Dahlem, sued defendants, Patsy Murray and Lacy Murray, for conversion. Defendants answered and were later notified the case was set for trial on June 12, 1974. Neither defendants nor their attorney appeared on that date and the court entered a default judgment against them. On June 21, 1974, defendants filed a motion for new trial which was denied.

Defendants, Patsy Murray and Lacy Murray, have appealed. We affirm.

The record reflects that all parties were notified on February 19, 1974, that the instant case was set for trial on June 12,1974. Defendants’ attorney was also scheduled to appear for oral argument before the Court of Criminal Appeals in Austin on that date.

Defendants’ attorney testified that he first became aware of the conflicting settings in the afternoon of June 10. He stated it was his habit to try to stay “twenty-four or forty-eight hours ahead.” The next morning, June 11, he talked to the County Court at Law clerk regarding the conflicting settings. The attorney testified he was told by the clerk that it would be alright and that she would make a “note” of it and put it in the file. The attorney stated he asked if he should do anything else and was told by the clerk that telling her of the conflict was “usually sufficient.” He stated the clerk instructed him to contact plaintiff’s attorney and notify him of the conflict.

Defendants’ attorney testified that sometime between lunch and 5:00 p. m. on June 11, he notified the opposing attorney’s office of the conflict. Defendants’ attorney stated he talked with plaintiff’s attorney, however, plaintiff’s attorney denies any such conversation occurred. Plaintiff’s attorney stated the conversation was between his secretary and defendants’ attorney. In any event defendants’ attorney was told the case would not be passed by agreement.

Defendants’ attorney further testified he was prevented from flying to Austin on the morning of June 12, because of bad weather, and when he returned to his office on June 13, he discovered judgment had been entered by the court on June 12.

Defendants’ attorney stated that as a result of his conversation with the clerk he believed the case had been passed or would be passed and he failed to appear because of his attempt to appear before the Court of Criminal Appeals in Austin.

The evidence shows that defendants’ attorney, after having been told the ease would not be passed by agreement, made no attempt to file a motion for continuance, or contact the judge of the County Court at Law.

We hold the trial court was authorized to find the failure of defendants’ attorney to appear was intentional or the result of conscious indifference. Cate v. Beene, 440 S.W.2d 389 (Tex.Civ.App.—Waco 1969, writ ref’d); Ivy v. Carrell, 407 S.W.2d 212 (Tex. 1966).

The judgment of the trial court is affirmed.


author: BARROW, Chief Justice.

text:
    Lyndon L. DALY, Appellant, v. The BOARD OF TRUSTEES OF the LAREDO MUNICIPAL JUNIOR COLLEGE et al., Appellees.
    No. 15420.
    Court of Civil Appeals of Texas, San Antonio.
    May 30, 1975.

      Hardberger, Branton & Herrera, Phillip D. Hardberger, San Antonio, for appellant.
    Oscar J. Pena, Laredo, for appellees.
   BARROW, Chief Justice.

Appellant has perfected his appeal from a take-nothing summary judgment in his suit against the Board of Trustees of the Laredo Municipal Junior College (LMJC) and its president, Ray A. Laird, to recover damages for breach of a contract to teach the nine-month term beginning on September 1, 1969. The trial court concluded that the suit was barred under the rule of res judica-ta by virtue of a prior judgment rendered between these same parties in the United States District Court for the Southern District of Texas which was affirmed by the United States Court of Appeals, Fifth Circuit. See Daly v. Moore, 491 F.2d 104 (1974).

Appellees’ motion for summary judgment was supported by certified copies of the complaint filed by appellant in the Federal Court and the judgment and opinion of the Fifth Circuit. We are met at the outset by appellant’s complaint, raised at oral argument, that the summary judgment of the United States District Court is not in the summary judgment record. In Gardner v. Martin, 345 S.W.2d 274 (Tex.1961), it was held that defendant was not entitled to a summary judgment based on a plea of res judicata where certified copies of the court record were not attached to the motion. In Boswell v. Handley, 397 S.W.2d 213 (Tex.1965), a summary judgment was reversed because of the movant’s failure to attach to his motion a verified or certified copy of the will and order probating same although the point was raised for the first time before the Court of Civil Appeals.

We have a different situation here in that appellees’ motion for summary judgment is based upon the judgment and opinion of the Fifth Circuit. Certified copies of these documents are attached to appellees’ motion. It was therefore not necessary that appellees file a certified copy of the judgment of the United States District Court.

Appellant urges by his single assignment of error that the trial court erred in granting the summary judgment on the ground of res judicata. Appellant asserts under this point that the State Court claim presents a new and distinct cause of action from that asserted in the Federal Court. Appellant alleged three causes of action in the Federal Court: (1) that he had been fired for reasons infringing upon his right to free speech and association; (2) that the decision to terminate his employment was wholly arbitrary and capricious; and (3) that he was denied his procedural rights as set forth in the college’s rules concerning faculty dismissal, and was therefore denied due process of law. The four issues submitted to the jury relate entirely to appellant’s claim that his First Amendment rights were violated. The jury found, in response to these issues, that none of said rights were violated although the sum of $8,000 was found as punitive damages. No issues were submitted to the jury regarding the alleged violation of appellant’s due process rights as a tenured instructor in LMJC.

On appeal the Fifth Circuit held that the trial court did not abuse its discretion in refusing to award punitive damages because of the jury’s failure to find that ap-pellees had violated appellant’s First Amendment rights. The Fifth Circuit further held that the trial court did not err in refusing to submit appellant’s requested instructions as to the due process requirements of the Fourteenth Amendment. As a basis for this holding, the Court cited its prior opinion in Smith v. Board of Regents, 426 F.2d 492 (1970), wherein it was held that the rules and regulations of the college which provided for a hearing for any faculty member who was discharged did not come into play because of Smith’s voluntary resignation.

In affirming the judgment of the trial court against Daly, the Fifth Circuit held:

“The facts before this court dictate only one conclusion. The plaintiff (Daly) willfully terminated his contract with Laredo Junior College and never reached the point at which hearing was required. There is no indication in the record of any desire of the college to dismiss the plaintiff for any reason other than his failure to honor his contract commitment to them. There are no facts to support the conclusion that an abridgement of the plaintiff’s First Amendment rights took place, nor was there any evidence that required any consideration of plaintiff’s due process rights to a greater extent than was done by the trial court.”

Appellant urges that the suit at bar seeks damages for a breach of his contract of employment with appellees and therefore is not barred by the take-nothing judgment in his Federal Court suit of his claim for damages for the alleged violation of his constitutional rights. It is seen that appellant’s cause of action for violation of his due process rights under his contract with appellees necessarily required a finding that he was discharged by appellees and did not willfully terminate the contract. The Fifth Circuit held that appellant willfully terminated his contract with LMJC. This finding, correct or not, has become final and bars subsequent litigation in the State Court of the same issue between these parties.

In Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971), the Supreme Court held that an existing final judgment rendered upon the merits by a court of competent jurisdiction upon a matter within its jurisdiction is conclusive of the rights of the parties in all other actions on the points at issue and adjudicated in the first suit.

The issue of whether appellant’s contract was wrongfully terminated by appellees or willfully terminated by appellant was determined adverse to appellant by the Fifth Circuit. This determination is conclusive between these same parties in the present proceeding under that aspect of res judicata sometimes called collateral estoppel. Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973). The trial court properly sustained appellees’ motion for summary judgment.

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Dusty HENSON, Appellant, v. Jonie Jay BROWN, Appellee.
    No. 12300.
    Court of Civil Appeals of Texas, Austin
    June 4, 1975.

      Gerald W. Dorsey, Jr., Ralph Wm. Scog-gins & Associates, El Paso, for appellant.
    Greg Gossett, Logan, Lear, Gossett & Harrison, San Angelo, for appellee.
   PHILLIPS, Chief Justice.

Appellee, Jonie Jay Brown, brought this suit against appellant Dusty Henson, and prayed for a judgment declaring appellant to be the father of her illegitimate child and ordering him to contribute to the child’s support. Appellant filed a plea of privilege asking that the case be transferred to El Paso County, his residence. Appellee then filed her controverting plea alleging venue in Tom Green County, Texas, the county where she and the child reside, under the provisions of Section 11.04(a), Texas Family Code, V.T.C.A.

After hearing, the trial court entered judgment denying the plea of privilege, from which judgment appellant has prosecuted this appeal. We affirm this judgment.

Appellant is before us on a single point of error, which we overrule, urging, the error of the trial court in holding that Article 1995, subsection 30, Vernon’s Ann.Civil Statutes, encompasses a statutory provision expressly providing and setting venue in a suit brought for involuntary establishment of paternity and for support of an unrecognized illegitimate child.

Appellant contends that there is no specific statutory authority provided for paternity suits under the Texas Family Code, hereinafter described; and that venue in a contested paternity suit cannot be maintained under the provisions of Section 11.04 of the Texas Family Code which provides that a suit affecting the parent-child relationship shall be brought in the county where the child resides. Appellant relies solely on Article 1995 which gives a person who has been sued the right to defend the suit in the county of his or her residence except under certain well-defined exceptions.

We cannot agree with appellant’s argument. Appellee has alleged that she is the mother of a female child born out of wedlock; that appellant is the father of the child; that the child resides with appellee in Tom Green County; that this is a suit affecting the parent-child relationship and that appellant should be made to contribute to the child’s support. As we understand, in the hearing the appellee advanced some proof of the child’s entitlement to support from appellant.

Section 12.04 of the Texas Family Code provides that a parent has the duty to support his or her children. In Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the Supreme Court of the United States held that Texas may not discriminate against illegitimate childen and must also extend any protection afforded legitimate children under Section 12.04 to illegitimate children. Section 11.01(4) provides that the “parent-child relationship” means the rights, privileges, duties and powers existing between a parent and child as provided by Section 12.04 of the Code. Further, Section 11.04 provides that a suit affecting the parent-child relationship shall be brought in the county where the child resides. A reading of Section 11.04 indicates that the legislature intended to place venue in such suits exclusively in the county of the child’s residence. See Section 11.06(a). It is therefore encompassed by subsection 30 of Article 1995.

As this proceeding was brought to secure for the child the benefits accorded children under the provisions of Section 12.04 of the Texas Family Code, it is a suit affecting the parent-child relationship and venue is properly maintainable in the county where the child resides.

The judgment of the trial court is affirmed.

      . Article 1995, subsection 30 is as follows:
      “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:
      * * * * * *
      “30. Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”


author: WALTER, Justice.

text:
    Ollie B. HOWARD, Appellant, v. Bruce F. BACHMAN, Appellee.
    No. 4790.
    Court of Civil Appeals of Texas, Eastland.
    June 6, 1975.
    Rehearing Denied June 27, 1975.
    Pete Baker, Wagstaff, Harrell, Pope, Al-vis, Dickenson & Erwin, Abilene, for appellant.
    Malcolm C. Schulz, Abilene, for appellee.
   WALTER, Justice.

Bruce F. Bachman recovered a $1,271.30 judgment for damages against Ollie B. Howard resulting from an intersectional collision. Howard has appealed.

The material issues submitted to the jury and their answers are as follows:

“QUESTION NO. 1
On the occasion in question, did BRUCE F. BACHMAN:
a. Fail to keep such a lookout as a person using ordinary care would have kept?
Answer: No
b. Drive at a greater rate of speed than a person using ordinary care would have driven ?
Answer: Yes
c. Fail to make such application of the brakes as a person using ordinary care would have made?
Answer: No
If you have answered any subdivision of Question No. 1 ‘yes’ and only in that event, then answer the corresponding subdivision of Question No. 2.
QUESTION NO. 2
Was such act or omission a proximate cause of the occurrence in question with respect to:
a. Failure to keep such a lookout as a person using ordinary care would have kept?
Answer: _
b. Driving at a greater rate of speed than a person using ordinary care would have driven?
Answer: No
c. Failure to make such application of the brakes as a person using ordinary care would have made?
Answer:
QUESTION NO. 3
On the occasion in question did OLLIE B. HOWARD:
a. Fail to keep such a lookout as a person using ordinary care would have kept?
Answer: Yes
b. Fail to yield the right-of-way to the vehicle driven by Bruce Bach-man?
Answer: Yes
You are instructed that the driver of a vehicle intending to turn to the left within an intersection, or into an alley, private road, or driveway, shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection, or so close thereto as to constitute an immediate hazard. An approaching vehicle is an ‘immediate hazard’ if it is so close that a person using ordinary care would reasonably conclude that he could not complete a turn without danger of collision.
If you have answered any subdivision of Question No. 3 ‘yes’ and only in that event, then answer the corresponding subdivision of Question No. 4
QUESTION NO. 4
Was such act or omission a proximate cause of the occurrence in question with respect to:
a. Failure to keep such a lookout as a person using ordinary care would have kept?
Answer: No
b. Failure to yield the right-of-way to Bruce Bachman as that term is above defined.
Answer: Yes”
“QUESTION NO. 7
What percentage of the negligence that caused the occurrence do you find from a preponderance of the evidence to be attributable to each of the parties found by you to have been negligent?
The percentage of negligence attributable to a party is not necessarily measured by the number of acts or omissions found.
Answer by stating the percentage, if any, opposite each name.
BRUCE F. BACHMAN 40%
OLLIE B. HOWARD 60%
QUESTION NO. 8
Find from a preponderance of the evidence the reasonable cost in Taylor County, Texas, of repairs, if any, necessary to restore Bruce Bachman’s vehicle to the condition in which it was immediately before the occurrence in question.
Answer in Dollars and Cents, if any
ANSWER: $1271.30”
Article 2212a, Vernon’s Ann.Civ.St., is as follows:
“Modified comparative negligence.
Section 1. Contributory negligence shall not bar recovery in an action by any person or party or the legal representative of any person or party to recover damages for negligence resulting in death or injury to persons or property of such negligence is not greater than the negligence of the person or party or persons or parties against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person or party recovering.”

Howard contends Bachman’s negligence need not be a proximate cause of the occurrence in question for Article 2212a to become applicable. We disagree. In Calvert v. Texas Pipe Line Company, 517 S.W.2d 777 (Tex.1974), the court said:

“The fundamental and dominant rule controlling the construction of a statute is to ascertain if possible the intention of the Legislature expressed therein. Sec. 6, Article 10, Vernon’s Ann. Revised Civil Statutes. In Calvert v. British-American Oil Producing Co., 397 S.W.2d 839 (Tex.1965), at 842 this Court said:
‘Article 10, Vernon’s Annotated Civil Statutes, provides general rules for construing all civil statutory enactments. The article provides that the provisions of statutes shall be liberally construed with a view to effect their objects. The courts necessarily look diligently for the intention of the Legislature as the intention of the Legislature is the dominant consideration in construing a statute.’ ”

Section 6 of Article 10, V.A.C.S., provides as follows:

“In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.”

In State v. Dyer, 145 Tex. 586, 200 S.W.2d 813 (1947), the court said:

“In Edwards v. Morton, 92 Tex. 152, 153, 154, 46 S.W. 792, 793, where the strict letter of a statute was not followed, the court said: ‘The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature, and to conclusions inconsistent with the general purpose of the act.’ A too literal construction of a statute, which would prevent the enforcement of it according to its true intent, should be avoided, Bowman v. Puckett, 144 Tex. 125, 128, 188 S.W.2d 571. In ascertaining the true intention of the legislature in the enactment of subdivision 7 of Article 1387, and the general purpose of the statute of which it is a part, we take into consideration the existing condition of the law at the time of the enactment of the statute and the general rules then established and applicable to its subject matter. McBride v. Clayton, 140 Tex. 71, 76, 77, 166 S.W.2d 125.”

In Southwestern Sav. & Loan Ass’n of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917 (1960), the court said:

“A statute should not be shorn of its effectiveness if its purpose can be achieved by a reasonable interpretation.”

We interpret the words contributory negligence and negligence used in the statute to mean such contributory negligence and such negligence as was a proximate cause of the occurrence in question.

Appellant also contends the court erred in not granting a mistrial because the answer to question number 2 and the answers to number 7 are in irreconcilable conflict. Appellant cites Little Rock Furniture Mfg. Co. v. Dunn, 222 S.W.2d 985 (Tex.1949) and Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772 (1960), in support of her contention. We consider these authorities inapplicable.

In Hodges, 1969 Supplement to Special Issue Submission in Texas, at page 126, we find the following:

“Another area in which the asserted conflict is properly treated somewhat differently is where the asserted conflict is between finding of no negligence or that the negligence was not a proximate cause of the event or the injury, and the finding that the plaintiff suffered a stated amount of damages proximately caused by the event or the negligence of the defendant. The result is consistent with that reached by the usual approach.
It is consistently held that there is no fatal conflict. The result is sometimes explained by reconciliation. Sometimes by merely stating that the damage question becomes ‘immaterial’ when no liability is found. In others it is said that the specific findings on the liability control the general finding of an amount of damages or that the conflict was not material to the judgment.”

In Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (Tex.1958), the court said:

“Special Issue No. 5 is the conventional type of damages issue. Its purpose is not to establish liability. Its purpose is to fix the amount of money damages which will fairly compensate an injured party for his injuries and thus discharge the legal liability of a defendant. Whether there is any legal liability on the part of a defendant to pay the money damages must be determined, when the evidence is conflicting, through the submission of separate issues.”

In Wilkinson v. Southern Farm Supply Association, 409 S.W.2d 435 (Tex.Civ.App.—Amarillo 1966, ref. n. r. e.), at page 438 the court said:

“. ■ . Each of the issues as to damages ended as follows: ‘Proximately caused by the negligence, if any, of the defendant.’ It is contended that when the court inquired of the jury what sum of money would fairly and reasonably compensate the plaintiffs for certain injuries, if any, proximately caused by the negligence, if any, of the defendant and the jury answered a certain amount that would entitle plaintiff to recover damages for injuries proximately caused by the negligence of the defendants. In other words, such finding established that the defendant was negligent and such negligence was a proximate cause of the injuries regardless of the finding in answer to special issues that the defendant was not negligent.”
“. . . The jury found in answer to all of the special issues as to the negligence pleaded and presented to the jury that Witt was not negligent or that such negligence was not a proximate cause of the damage. The answers as to the damages as here submitted were general but the answers to the special issues as to the negligence of Witt and a proximate cause were definite and specific and the trial court had the power to apply that reasonable construction which he deemed proper and it was his duty to harmonize the findings of the jury.”

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.