author: MILLER, Justice.

text:
    Salvador GONZALEZ et al., Appellants, v. R. Wayne MANN et al., Appellees.
    No. A2064.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 18, 1979.
    Rehearing Denied Aug. 8, 1979.

      Pat Maloney, San Antonio, for appellants.
    William H. White, Margaret A. Pollard, Law Offices of William H. White Associates, H. Wayne Gillies; Law Offices of H. Wayne Gillies, Houston, for appellees.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   MILLER, Justice.

This is an appeal from a summary judgment granted to the defendant in a suit for bill of review. We reverse and remand.

Salvador Gonzalez, et al., brought suit in Zavala County (First Suit) asking for various remedies arising from breach of a land sale contract. The defendants’ plea of privilege was sustained and the suit was transferred to the 129th District Court of Harris County, Cause No. 999,910. The plaintiffs failed to timely answer interrogatories. The defendants sought and obtained an order to compel the plaintiffs to answer the interrogatories within ten days. After the plaintiffs failed to obey the previous order, the trial court entered judgment dismissing the suit “with prejudice” to the plaintiffs’ right to bring the cause of action again.

No appeal was taken from that dismissal but instead the plaintiffs filed a suit for declaratory judgment, Cause No. 1,034,104, in the 152nd District Court of Harris County. (Second Suit) Defendants filed a plea in abatement and asked for a dismissal which was granted. The plaintiffs appealed that dismissal to this court as well as filing a Third Suit, Cause No. 1,063,128, for a bill of review of the First Suit. We reversed and remanded the appeal in the Second Suit. Gonzalez v. Mann, No. 1407 (Tex.Civ.App.—Houston [14th Dist.], December 1, 1976). Upon remand defendants moved for summary judgment on the ground that the then pending bill of review deprived the trial court of jurisdiction to hear the Second Suit. The trial court granted the summary judgment. Plaintiffs appealed to this court. We held that there had been no case pending at the time of the filing of the Second Suit, as a bill of review does not revive the prior cause and we again reversed and remanded. Gonzalez v. Mann, 583 S.W.2d 637 (Tex.Civ.App.—Houston [14th Dist.], 1979).

In the meantime in the Third Suit, defendants filed a motion for summary judgment on the ground that the plaintiffs were not entitled to a bill of review as a matter of law. The trial court granted the summary judgment and the plaintiffs again appeal.

In the first point of error we are met with plaintiffs’ contention that because the order which the bill of review sought to set aside was void, it was not necessary for them to meet the bill of review requirements. We already decided in the appeal from the Second Suit that the trial court had no authority to dismiss the First Suit “with prejudice” under Tex.R.Civ.P. 168, 215a and 170(c) and we struck “with prejudice” as surplusage. This case also falls into the class of cases in which the Texas Supreme Court has held that where the trial court has jurisdictional power to render judgment on the merits, the litigant must utilize a bill of review proceeding. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961). Only if a judgment is “void in law” can a litigant make an attack by any collateral method. Consequently, even if the “dismissal with prejudice” was allowed to stand, the plaintiffs would have had to meet the bill of review requirements in a direct attack.

The first point of error is overruled.

In their second and third points of error the plaintiffs complain of the granting of defendants’ motion for summary judgment. In their pleadings the plaintiffs alleged that: (1) they were not afforded the opportunity to approve the motion to compel; (2) the plaintiffs’ new attorney wrote to defendants’ attorney saying that he had not received the interrogatories and asking that no further order be entered; (3) notwithstanding the above letter, the defendants obtained an order of dismissal; (4) the order of dismissal did not affirmatively show a certificate of service on plaintiffs’ new attorney; (5) plaintiffs were “lured into relying upon said representation and custom and usage in the district court of furnishing both sides copies”; (6) they had a meritorious claim; (7) they were not at fault; (8) they had a right to be furnished with a copy of the order of dismissal and were deprived of this right by the defendants; and (9) the court clerk failed to send them notice of the judgment pursuant to Tex.R.Civ.P. 306d.

In the usual bill of review the plaintiffs have to allege and prove that they have a (1) meritorious cause of action, (2) which they were prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of their own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950); Gracey v. West, 422 S.W.2d 913 (Tex.1968). Several cases, however, have modified this rule.

In Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964) the defendant neglected to file an answer and suffered a default judgment. Within ten days of judgment the defendant’s attorney called the court and was told by the clerk that nothing had been done when in fact the judgment had been entered on the minutes that very day. The defendant subsequently filed an answer. Nothing further was done by him until the Sheriff attempted to levy execution on his property. The defendant then brought suit for equitable relief. The Texas Supreme Court said:

Hanks was negligent as a matter of law. This negligence, however, was in failing to file an answer in time, not in his failure to timely file a motion for new trial. . . . Since there was a reliance on the erroneous official information given by the clerk, it was unnecessary for Hanks to show, as required under the other circumstances in Hagedom, that he was prevented from filing his motion for new trial because of some accident, fraud, or wrongful act of the opposing party. .

The Supreme Court then summarized:

. assuming that the failure to file an answer is not intentional or the result of conscious indifference, that if a litigant is misled or prevented from filing a motion for new trial by misinformation of an officer of the court, acting within his official duties, and this misinformation is given to the party or his counsel within the ten-day period for filing the motion for new trial so as to bring about the failure to file a motion for new trial in time, the trial court, upon finding that the party has a meritorious defense and that no injury will result to the opposition, may grant the bill of review.

In Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974) the Supreme Court held that a bill of review might be predicated upon the court clerk’s failure to send notice of the signing of the judgment as required by Tex.R.Civ.P. 306d.

We hold that the Hanks or Carroll rules will apply to cases where the party is prevented from taking the necessary first step toward perfecting an appeal. In the first suit, the plaintiff had two rights: (1) to file an answer to the interrogatories to prevent dismissal and (2) to file an appeal bond within 30 days after the dismissal was ordered. In the spirit of Hagedorn, Carroll and Hanks we hold that to prevail in the bill of review, plaintiffs had the burden of proving:

(1) that the failure to answer the interrogatories was not intentional or the result of conscious indifference;
(2) that they had a meritorious claim;
(3) that they were not informed by the clerk of the dismissal judgment pursuant to Tex.R.Civ.P. 306d;
(4) that they were therefore prevented from perfecting an appeal and
(5) that the opposite party would not be caused to suffer injury by the granting of a bill of review.

The defendants, in their motion for summary judgment, had the burden of disproving at least one of these elements as a matter of law. Wilcox v. St. Mary’s University of San Antonio, Inc., 531 S.W.2d 589 (Tex.1975); Taylor v. Fred Clark Felt Co., 567 S.W.2d 863 (Tex.Civ.App.—Houston [14th Dist.] 1978, writ ref’d n. r. e.). (Emphasis ours.) The only proper summary judgment proof presented by the defendants was an affidavit by their attorney of record. The defendants’ pleadings in the cause, even though verified, are not evidentiary. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971). The affidavit essentially set out that the attorney had mailed to the plaintiffs’ attorney of record, as well as to their new attorney: the interrogatories, the motion to compel, notice of the hearing on the motion to compel, the proposed order granting the motion to compel, and the signed order to compel. Plaintiffs submitted three affidavits. One was by an attorney which swore that he had reviewed the plaintiffs’ attorney’s records and found no notice of dismissal. Another was by plaintiffs’ new attorney of record swearing that he had not received notice of the hearing on the motion to compel, a copy of the order to compel nor a copy of or notice of the order of dismissal. The third affidavit was by plaintiffs’ attorney in the bill of review to the effect that they had been prosecuting available remedies with diligence.

We think that the only proof offered by defendants attempted to address the question of whether the failure to answer the interrogatories was intentional or the result of conscious indifference. Defendants’ proof only related to whether the plaintiffs had been notified at various steps in the proceeding. Even if the failure to answer was negligent as a matter of law, it cannot be said by implication that such failure was intentional or the result of conscious indifference. Every reasonable inference must be made in favor of the non-movants and any doubts resolved in their favor. Wilcox v. St. Mary’s University of San Antonio, Inc., supra. Defendants did not disprove any of plaintiffs’ necessary bill of review requirements as a matter of law and therefore the judgment must be reversed and remanded.

The second and third points of error are granted.

The trial court’s judgment is reversed and remanded.

      . The plaintiffs direct us to Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959) in which the Supreme Court upheld orders on motions to vacate void judgments. In McEwen, supra, 345 S.W.2d at 711, Justice Calvert specifically distinguishes Freeman, by stating that the exclusiveness of remedy by bill of review as provided in Rule 329b was not presented or decided.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    Robert L. NORTON, Appellant, v. INTEGRAL CORPORATION, Appellee.
    No. 13069.
    Court of Civil Appeals of Texas, Austin.
    July 18, 1979.
    Rehearing Denied Aug. 22, 1979.

      Morton A. Rudberg, Carter, Jones, Ma-gee, Rudberg, Moss & Mayes, Dallas, for appellant.
    Richard T. Halpain, La Grange, for appel-lee.
   O’QUINN, Justice.

Integral corporation brought this lawsuit in April, 1979, seeking to enforce an agreement with Robert L. Norton, a former employee, not to compete, upon leaving such employment, with the corporation in the sale or manufacture of competitive electrical equipment to the center pivot sprinkler industry. From a temporary injunction enjoining Norton until trial of the cause on its merits, Norton appeals and brings six points of error. We will modify the judgment and will affirm the judgment as modified.

Resolution of the issues involved turns on ■analysis of the legal status of Integral Corporation after its business activities passed through a series of corporate rearrangements. We conclude, in brief, that Integral Corporation is not entitled to the broad protection accorded the company by the trial court’s injunctive order.

The employment contract here involved was entered into in February of 1975 with The Eads Company of Dallas, a corporation, the corporate antecedent of Integral Corporation. The principal business activity of Eads Company at that time was acting as a manufacturer’s representative for Tamaqua Cable Company in selling electrical cable which was used in the construction and operation of center pivot irrigation equipment. Eads owned a subsidiary, Integral Systems Incorporated, which manufactured electronic controls for center pivot irrigation equipment.

The restrictive portion of the employment contract between Eads and Norton provided in essential part that “. . . upon termination of his employment [Norton] shall not directly or indirectly, within the existing marketing area of the Company in the State of Texas or any future marketing area of the Company begun during employment . . . enter into or engage generally in direct competition with The Eads Company of Dallas in the business of manufacturing or acting as a Sales Representative for sales of competitive electrical equipment to the center pivot sprinkler industry either as an individual . or as an employee or agent . for a period of three (3) years after date of termination of his employment . . .” (Emphasis added).

Thereafter in 1975 Eads Company underwent structural changes in course of which the company’s name was changed to Integral Corporation, the subsidiary Integral Systems Incorporated was eliminated, and a new manufacturing operation was commenced which produced “cable con,” a product fabricated by passing wire, already made, through an extruder to encase the wire in a tube, or conduit, and winding the finished product onto a reel for convenient placement, in a single operation, of both wire and conduit in a channel to provide underground wiring. Subsequent to these changes, Integral Corporation engaged in three functions: (1) manufacturing representative selling electrical cable, (2) manufacturing and selling center pivot controls, and (3) manufacturing and selling “cable con,” the underground cable.

In February of 1978 further changes were effected by creating a new corporation, designated The Eads Company, to which was transferred all that portion of Integral Corporation acting as a manufacturing representative selling electrical cable. In November of 1978 additional corporate changes were made, with the functions of manufacturing electrical controls for center pivot machines being merged with another manufacturer, a former competitor of Integral Corporation in that field, and all such functions were placed in a new corporation, Hydrus Corporation. Remaining with Integral Corporation thereafter were only the functions involved in the manufacture of “cable con.”

Beginning with the employment contract with Norton in February of 1975, and subsequently through the corporate rearrangements already related, the control, through stock ownership, of the several corporations was, and remains, with James L. Gray, president of The Eads Company of Dallas in 1975 and president at the time of trial of Integral Corporation. At the hearing on temporary injunction, Gray testified that in the end the “. . . whole operation is a controlled group, controlled by me.” Gray also testified that the separate functions of manufacturing and selling, performed by the several corporations, were “reinforcing to each other . . . particularly since I am the majority stockholder in all of them

Integral Corporation’s position on appeal appears to be that, it is immaterial that the company no longer is “. . .in the business of manufacturing or acting as a Sales Representative for sales of competitive electrical equipment to the center pivot sprinkler industry,” as described in the employment contract of 1975 with Norton, because Gray “owned the majority interest in and controlled each of the companies . more particularly was in charge of sales and marketing . . . and Appellant would have continued to report to and work under Jim Gray . . .’’if Norton had remained with Integral.

Although Integral Corporation, the only corporation with which Norton contracted in 1975, is engaged now only in manufacture of “cable con,” appellee argues that “the management stayed essentially the same and that Jim Gray controlled all of the various companies mentioned by owning a majority of the outstanding stock,” and that the trial court correctly enjoined Norton from competing with any of the several corporations controlled by Gray.

The record is clear in showing that each of the corporations has a separate charter, a separate set of by-laws, separate officers, and a separate board of directors, and thus each corporation is a separate legal entity. Integral Corporation by contract and for a fee performs accounting services for one or more of the other companies, and the principal connection among the corporations is through Gray as the majority stockholder of each entity.

Appellant Norton brings nine points of error, the force of the first six points being his claim that the trial court abused its discretion in enjoining him from competing with Integral Corporation in aspects of business in which the company is no longer engaged.

Norton resigned his position with Integral Corporation as vice president of sales early in December of 1978. The Hydrus Corporation had been chartered in November, at which time Hydrus was designated to take over sales of electrical cables, although, Gray testified, “the companies were separate on paper . . . some of the homework hadn’t been done as far as transferring things back and forth.” Norton finally left Integral in the latter part of January, 1979, and took employment with Tamaqua Cable Company, and the parties appear in agreement that at that time Integral Corporation “had ceased making sales of irrigation cable,” a function taken over by Hydrus, under a transfer which stipulated that, “Integral Corporation will continue as a separate company in the manufacture and sale of underground cable products [cable con].”

It is the general rule “. that courts will not because of stock ownership or interlocking directorship disregard the separate legal identities of corporations, unless such relationship is used to defeat public convenience, justify wrongs, such as violation of the anti-trust laws, protect fraud, or defend crime.” State v. Swift & Co., 187 S.W.2d 127, 131-2 (Tex.Civ.App. Austin 1945, writ ref’d). It is also a general rule that the separate entity of corporations will be observed by the courts, even in instances where one may dominate or control the other, or may even treat it as a mere department, instrumentality, or agency of the other. Associates Development Corporation v. Air Control Products, Inc., 392 S.W.2d 542, 544 (Tex.Civ.App. Austin 1965, writ ref’d n. r. e.); State v. Swift & Co., supra; Wright Hydraulics, Inc. v. Womack Machine Supply Company, 482 S.W.2d 34, 36 (Tex.Civ.App. Fort Worth 1972, no writ).

An agreement by an employee not to compete with his employer after termination of the employment “. . . is in restraint of trade and will not be enforced in accordance with its terms unless the same are reasonable.” Weatherford Oil Tool Company v. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960). The record does not show that the Norton contract was expressly transferred out of Integral Corporation, and neither Hydras Corporation nor Eads Company is a party to this lawsuit seeking to enforce any claim of competition in violation of the contract.

The test usually guiding the courts in determining validity of a covenant such as Norton made with the original Eads Company, now by change of name called Integral, is whether the covenant imposes upon the employee any greater restraint than is reasonably necessary to protect the business and good will of the employer. Weatherford Tool, supra. Integral is no longer in the business of selling irrigation cable and controls; therefore, Norton could not be in competition in this aspect of the business, which, as earlier observed was transferred to Hydras Corporation, not a party to this suit.

Where an injunction prohibits the former employee from engaging in business activities in which the employer is not engaged, the injunction is too broad and should be modified. Haig v. Gittings, 260 S.W.2d 311, 312 (Tex.Civ.App. Dallas 1953, no writ); 61 A.L.R.3d 397, 491-2. Under the facts of this case Integral Corporation is entitled to enforce its right to preclude competition by Norton in the limited aspects of its business; that is, in manufacture and sale of “cable con”, the underground cable, to the “center pivot sprinkler industry,” as specified in the contract of 1975. Integral may not be allowed to enforce rights which Hydras may have, if any, under the contract to prevent sale of irrigation cable and controls, because Hydras Corporation is not a party to this suit seeking any redress. Rimes v. Club Corporation of America, 542 S.W.2d 909 (Tex.Civ.App. Dallas 1976, writ ref’d n. r. e.).

The injunctive order of the trial court temporarily enjoined and restrained Appellant Norton from (1) competing with Integral Corporation “in the business of manufacturing or acting as a manufacturer or sales representative for the sales of electrical equipment in the center pivot sprinkler industry . .” and (2) from using or disclosing confidential information or trade secrets concerning the business of Integral Corporation.

It is undisputed that Integral Corporation is presently engaged only in the business of manufacture and sale of “cable con,” or underground cable, used in the center pivot sprinkler industry.

We are aware of the rule that since this appeal is from an order granting a temporary injunction, the order should not be reversed unless there be shown an abuse of discretion. Except in respects already pointed out, we perceive no abuse of discretion by the trial court.

We conclude that the order is too broad under the undisputed facts disclosed by the record. Integral corporation is engaged only in a part of the field of supplying electrical cable and other devices to the center point pivot sprinkler industry, and the order undertakes to enjoin Norton from activities that do not compete with Integral Corporation.

The order of the trial court is modified to restrain appellant from manufacture and sale of “cable con”, the underground cable, to the center point pivot sprinkler industry and from disclosing confidential information or trade secrets of Integral Corporation.

As modified the judgment of the trial court is affirmed.


author: GUITTARD, Chief Justice.

text:
    Ex parte Eugene Robert MASON.
    No. 20094.
    Court of Civil Appeals of Texas, Dallas.
    July 18, 1979.
    Louis Davis, Jr., Dallas, for appellant.

      Richard Johnson, Koons, Smith & Johnson, Dallas, for appellee.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   GUITTARD, Chief Justice.

This writ of habeas corpus has been granted on the ground that relator’s commitment for violation of a child-support order was void because the order finding him in contempt and ordering his confinement was conditioned on his failure to comply by a certain future time, and no further hearing was held before commitment to determine lack of compliance.

The only contempt hearing shown by the record was held September 13, 1978. No order was signed by the judge, however, until March 8, 1979. This order recites a finding that relator had failed to make child-support payments as previously ordered by the court in the amount of $1,000, that a reasonable attorney’s fee to be assessed against him was $500, and that he should also pay court costs in the amount of $90. The order adjudges relator in contempt, fixes his punishment at confinement in jail for seventy-two hours, and orders that he be further confined until he has purged such contempt by certain acts, which are defined in the order as follows:

1. Pay child support arrearage in the amount of $1,000.00 to CARON JO MASON through the Dallas County Child Support office by June 1, 1979, and report back on June 4, 1979, at 8:30 a. m. and show compliance.
2. Pay the costs of this proceeding, to-wit: $90.00 to be paid to the District Clerk of Dallas County, and $500.00 to be paid to RICHARD JOHNSON, attorney for Movant by June 1, 1979, and report back on June 4, 1979, 8:30 a. m., to show compliance.

The words emphasized above were apparently added in the judge’s own handwriting to the typewritten order presented by counsel.

No commitment, however, was issued on this order until June 12, 1979, when, without further hearing, relator was arrested and confined. On relator’s application for writ of habeas corpus, we granted bail and set a hearing.

The order of March 8 does not, by its express terms, provide that the sentence of contempt is suspended on condition of the contemner’s compliance, as did the orders in Ex parte Sauser, 554 S.W.2d 239 (Tex.Civ.App.—Dallas 1977, no writ), and Ex parte Hart, 520 S.W.2d 952 (Tex.Civ. App.—Dallas 1975, no writ). Nevertheless, the implication of the order was that it was conditional, since it gave relator until June 4, 1979, to show compliance. Before that date any commitment would not have been authorized. This construction of the order is confirmed by the fact that no commitment was issued until June 12. Consequently, we hold, in accordance with Sauser and Hart, that due process required a further hearing to determine lack of compliance, and that in the absence of such a hearing the commitment is void.

The only alternative to construing this order as conditional is to hold it void for impossibility of compliance. When relator was arrested on June 12, he could not possibly purge the contempt by showing compliance on June 4, as the order required him to do. An order impossible of performance is void. Ex parte Mabry, 122 Tex. 54, 52 S.W.2d 73, 74 (1932). Consequently, it is clear to us that the order was intended to be conditional.

Respondent has called our attention to an order signed nunc pro tunc, dated July 11, 1979, on respondent’s motion, changing the date of hearing as recited in the original order from February 6, 1979, to September 13, 1978. The corrected order also eliminates the language of the original order which the judge added in his own handwriting. The motion on which the corrected order is based, however, does not state that this language was added by a clerical mistake, and counsel for respondent does not suggest that it was. Consequently, we do not regard the order of July 11 as effectively eliminating these handwritten provisions from the order signed on March 8. Even if the correction were proper in this respect, as well as with respect to the date, relator was confined under the terms of the order as it stood on March 8. Consequently, such confinement was improper for the reasons already stated.

Writ granted and relator discharged from custody.


author: McDONALD, Chief Justice.

text:
    Faye Lynn GRAHAM, Appellant, v. Terry Alexander GRAHAM, Appellee.
    No. 6077.
    Court of Civil Appeals of Texas, Waco.
    July 19, 1979.
    Rehearing Denied Aug. 16, 1979.

      Nicholas A. Kelsey, Waco-McLennan County Legal Aid, Waco, for appellant.
    Galen B. Edwards, Richard V. McCall, Edwards, McCall, Schwartze & Edwards, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant Faye Lynn Graham from that portion of a judgment in a divorce case which appointed appellee Terry Alexander Graham Managing Conservator of the parties’ minor daughter Me-lode Ann.

Appellant sued appellee for divorce, and sought to be appointed Managing Conservator of the parties’ two minor children Me-lode Ann and Nicole Lee.

Appellee cross petitioned for divorce and to be appointed Managing Conservator of the children.

Trial was to the court, which decreed the parties’ divorce; appointed appellee Managing Conservator of Melode Ann; appointed appellant Managing Conservator of Nicole Lee; appointed appellant Possessory Conservator of Melode Ann; appointed appellee Possessory Conservator of Nicole Lee; established visitation rights for the parties; and required appellee pay $15. per week child support for Nicole Lee.

The trial court filed Findings and Conclusions summarized as follows:

Findings of Fact
a) The parties were married December 28, 1974 and separated April 20, 1978.
b) Proceedings for divorce were filed June 30, 1978.
c) The parties have two children of this marriage under 18, one of which was unborn at the time this divorce action was commenced, to wit:
Melode Ann Graham Sex: Female
Birthdate: October 29,1975
Nicole Lee Graham Sex: Female
Birthdate: September 26,1978
d) The children have never lived together at any time.
e) It is to the best interest of Melode Ann to appoint appellee as her Managing Conservator.
f) And to appoint appellant as her Pos-sessory Conservator.
g) It is to the best interest of Nicole Lee to appoint appellant as her Managing Conservator.
h) And to appoint appellee as her Pos-sessory Conservator.
i) There are clear and compelling reasons justifying divided custody of the children.
Conclusions of Law
a) The best interest of the child is the primary consideration in determining questions of Managing Conservatorship.
b) In determining who shall be appointed Managing Conservator, the court should consider the circumstances and qualifications of the person without regard to the sex of said person.
c) d) It is in the best interest of Me-lode Ann for appellee to be appointed her Managing Conservator; and appellant be appointed Possessory Conservator.
e) f) It is in the best interest of Nicole Lee for appellant to be appointed her Managing Conservator; and appellee be appointed Possessory Conservator.
g) Clear and compelling reasons justify divided custody in this case.

Appellant appeals on 7 points.

Point 1 asserts the trial court erred in refusing appellant’s request for specific finding of material fact as to clear and compelling circumstances justifying the division of custody, because the finding, as is, is legally insufficient to sustain the conclusions of law and judgment dividing custody; points 2 thru 4 assert the trial court abused its discretion in dividing custody of the two sisters in that there is no evidence the division was in their best interest, the division is contrary to the great weight and preponderance of the evidence, and such division is based on factually insufficient evidence to support the judgment; and point 6 asserts the trial court erred in placing Managing Conservatorship with appellee because the actual effect was to place custody with the paternal grandparents absent intervention by the grandparents.

The paramount concern of courts in determining custody of a child is the best interest of the child. The trial court has a wide discretion in determining the best interest of a child and in awarding custody of the child, and its award will not be reversed unless an abuse of discretion is clearly shown. Mumma v. Aguirre, Tex., 364 S.W.2d 220; Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; Adams v. Adams (El Paso, Tex.Civ.App.) NWH, 519 S.W.2d 502; Renfro v. Renfro (Waco, Tex.Civ.App.) NWH, 497 S.W.2d 807.

And technical rules of practice and pleading are of little importance in determining issues concerning custody of divorced parents. Leithold v. Plass, Tex., 413 S.W.2d 698; Mayo v. Hall (Waco, Tex.Civ.App.) NWH, 571 S.W.2d 213.

The custody of children of a marriage should not be divided except for clear and compelling reasons, but when clear and compelling reasons do exist, such rule yields to that custody which in the sound discretion of the trial court, is in the best interest of the child. Griffith v. Griffith (Tyler, Tex.Civ.App.) NWH, 462 S.W.2d 328; Beadles v. Beadles (Texarkana, Tex.Civ.App.) NWH, 251 S.W.2d 178; Kimery v. Blackstock (Waco, Tex.Civ.App.) NWH, 538 S.W.2d 503.

The trial court found that it is in the best interest of Melode Ann for appellee to be her Managing Conservator; and that there are clear and compelling reasons for justifying divided custody of the two children.

The evidence in this case demonstrates that appellee is the best suited to provide financial security for Melode Ann; that the arrangement he proposes with his mother and in her home is far better for Melode Ann than the lack of proposals afforded by custody with appellant. We cannot say from the record as a whole that the trial court abused its discretion in awarding the divided custody as it did, and we think the evidence ample to sustain the judgment.

Point 5 asserts the trial court erred in denying appellant’s motion for new trial based upon the conduct of Will Richards, a witness for appellee, which denied appellant a fair and impartial trial and fundamental due process of law; and point 7 asserts the trial court erred in making the statements for the record in the hearing of the motion for new trial.

After the trial but before the Judge rendered judgment, Will Richards, who had been a witness for appellee, came to the Judge’s office and told him appellant had threatened to have him killed if she lost her baby. The Judge referred Richards to the District Attorney’s office. The Judge stated into the record on motion for new trial “in no way did anything that the witness told this Court have anything to do with the Court’s decision except what he testified to under oath where all parties were present”.

It is presumed that every judge who has heard improper evidence is able to and does in fact disregard same when rendering his judgment. Findley v. Decker (Waco, Tex.Civ.App.) NWH, 499 S.W.2d 350; Victory v. State, 138 Tex. 285, 158 S.W.2d 760; Wilcox v. Dillard (Amarillo, Tex.Civ.App.) err. ref., 3 S.W.2d 507; Creager v. Douglas, 77 Tex. 484, 14 S.W. 150.

Moreover appellant has shown no harm. Rule 434, TRCP. All appellant’s points are overruled.

AFFIRMED.


author: HUMPHREYS, Justice.

text:
    Anthony D. MARTENS et al., Appellant, v. GENERAL MOTORS ACCEPTANCE CORP., Appellee.
    No. 19930.
    Court of Civil Appeals of Texas, Dallas.
    July 23, 1979.

      Ben L. Krage, Kasmir, Willingham & Krage, Dallas, for appellant.
    Arch A. Beasley, Jr., Biggers, Lloyd, Big-gers, Beasley & Amerine, Dallas, for appel-lee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

Appellants Anthony D. Martens and Richard E. Greenberg sued appellee General Motors Acceptance Corporation (GMAC), for statutory penalties, alleging that certain language in GMAC’s retail installment contract violates the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-7.-07(4) (Vernon 1971). The Court granted GMAC’s motion for summary judgment and denied Marten’s motion for partial summary judgment. The issue is whether paragraph six of the GMAC contract violates article 5069-7.07(4), which prohibits waiver of buyer’s rights of action against seller in installment contracts for illegal acts committed in the repossession of the vehicle. We hold that paragraph six does not violate the Code and affirm the trial court.

Martens and Greenberg bought and financed vehicles through GMAC installment contracts. Neither appellant has ever become delinquent in payments, appellee has not repossessed nor attempted to repossess either of these vehicles, and appellants’ claim no actual damages. Article 5069-7.-07(4) of the Code provides:

No retail installment contract or retail charge agreement shall:
(4) Provide for a waiver of the buyer’s rights of action against the seller or holder or other person acting therefor, for any illegal act committed in the collection of payments under the contract or agreement or in the repossession of a motor vehicle; (Emphasis added).

Paragraph six of the retail installment contract provides for the seller’s remedies on default and states:

Further in any such event, seller or any sheriff or other officer of the law may take immediate possession of said property without demand, including any equipment or accessories thereto; and for this purpose seller may enter upon the premises where said property may be and remove same. Seller may take possession of any other property in the hereinbefore described motor vehicle at time of repossession, wherever such other property may be therein, and hold same for buyer at buyer’s risk without liability on the part of seller. Such repossession shall not affect seller’s right, hereby confirmed, to retain all payments made prior thereto by the buyer hereunder. (Emphasis added).

Appellants argue that paragraph six of the GMAC contract violates article 5069-7.-07(4) because it purports to waive the buyer’s right to sue the mortgage holder for breaches of the peace and other illegal acts while repossessing the mortgaged motor vehicle. Appellants rely primarily on two cases involving installment contracts, Southwestern Investment Co. v. Mannix, 557 S.W.2d 755 (Tex.1977) and Ford Motor Credit Co. v. Cole, 503 S.W.2d 853 (Tex.Civ.App.—Fort Worth 1973, writ dism’d). Mannix involved the alleged violation of article 5069-6.05, which provides:

No retail installment contract or retail charge agreement shall:
(4) Provide for a waiver of the buyer’s rights of action against the seller or holder or other person acting therefor for any illegal act committed in the collection of payments under the contract or agreement or in the repossession of goods;

The contract provision in Mannix was:

Nothing shall prevent the Secured Party from removing [the property] from any premises to which same may be attached, upon default or breach of this Retail Installment Contract and Security Agreement or any part thereof, and the Debtor agrees to sustain the cost of repairs, if any, of any physical injury to the real estate caused by such removal.

557 S.W.2d at 763. The supreme court held that this provision waived a buyer’s cause of action for a tort committed in the repossession of goods. The court stated that the legislature not only intended such contract provision to be unenforceable but also to penalize a creditor for including such a provision in an installment contract. The court stated that such provision:

would deceive the very individuals the Legislature intended to protect; namely, “the uneducated, the unsophisticated, the poor and the elderly” into believing that their creditors could, with the law’s blessing, forcibly enter their homes at any time of the day or night and remove their goods without any concern for damages to the debtor’s real property.

557 S.W.2d at 763.

Cole was a venue case involving the repossession of a vehicle under this provision:

Time is of the essence of this contract. In the event Buyer defaults in any payment . . . Seller shall have the right to declare all amounts due or to become due hereunder to be immediately due and payable and Seller shall have all the rights and remedies of a Secured Party under the Uniform Commercial Code, V.T.C.A. including the right to repossess the Property wherever the same may be found with free right of entry, and to recondition and sell the same at public or private sale.
. Any personalty in or attached to the Property when repossessed may be held by Seller without liability and Buyer shall be deemed to have waived any claim thereto unless written demand by certified mail is made upon Seller within 24 hours after repossession .

503 S.W.2d at 854-55.

The court held that the debtor was entitled to retain venue of the suit in Denton County for unlawful conversion based on a claim that the lender had retained certain items in the repossessed car. The court said that the debtor could maintain suit for conversion under the provision because:

it would not be permissible to construe the language of the contract to permit Ford Motor Credit to be exempted from liability in the event it should convert unsecured property of its mortgagor. As so construed the contract would be unenforceable as contrary to the public policy of this state.

503 S.W.2d at 856.

The case here on appeal is distinguishable from Mannix and Cole. The provision in Mannix clearly allowed the lender to forcibly repossess the debtor’s property. Cole did not involve the Consumer Credit Code. The court in Cole only stated that the contract provision would be unenforceable if construed to allow the lender to convert debtor’s property. We hold that the language in this GMAC contract does not authorize illegal acts in repossession on the part of the vendor.

We agree with appellee that paragraph six does not allow a breach of peace in the repossession of the vehicle. Rather, it defines the bailor-bailee relationship in the event personal property not subject to the mortgage is in the vehicle when it is repossessed. The provision that “[sjeller may enter upon the premises where said property may be and remove same,” does not waive any rights of the buyer. If a breach of peace is committed by the seller, the buyer has an action in tort.

The contract also provides that the seller can take possession of any other property inside the vehicle at repossession and “hold same for buyer at buyer’s risk without liability on the part of the seller.” Appellants contend that this provision waives the buyer’s right to sue for conversion, or at least can be interpreted as a waiver of buyer’s rights of action against seller for the acts of the seller which damage buyer’s property. They argue that the Code must be construed liberally to effect its purpose and cite several cases for this contention. Southwestern Investment Co. v. Mannix, supra; Ford Motor Credit Co. v. Blocker, 558 S.W.2d 493 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.; O. R. Mitchell Motors, Inc. v. Bell, 528 S.W.2d 856 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.).

We determine that even reading the statute broadly to effectuate its intent, this provision does not violate article 5069-7.-07(4). The “Declaration of Legislative Intent” in Section 1 of the Code discusses consumers who are being “victimized and abused,” “unscrupulous operators, lenders and vendors,” and consumers with “intolerable burdens.” We conclude that even if the Code is construed most strongly in favor of the consumer, it does not invalidate any provision of the GMAC contract. No provision of that contract expressly waives any of the buyer’s rights of action for illegal acts of the seller during repossession. It is unclear what acts of the seller are intended to be covered by the term “illegal acts.” Even if this expression is taken to include negligent acts, this contract cannot reasonably be construed to waive liability for seller’s negligent acts. To be effective for that purpose, an express waiver of liability for negligence would be required. See Allbright Inc. v. Elledge, 515 S.W.2d 266, 268 (Tex.1974); K & S Oil Well Service, Inc. v. Cabot Corp. Inc., 491 S.W.2d 733, 739 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

We cannot agree that a contract is illegal merely because it is susceptible to an interpretation that violates the Code. While appellants’ cited cases assert the rule that sellers and creditors have a strict duty to see that their contracts comply with the Consumer Credit Code, the violations in those cases were clear. In Bell, the only violation affirmed by the court was not challenged, and in Blocker, the parties stipulated to the violation. Here, we have a contract provision which can be more reasonably construed to comply with the Code, and we so construe it. While we are sympathetic to the unequal bargaining power of the “uneducated, the unsophisticated, the poor and the elderly” in consumer credit transactions, article 5069-7.07(4) prohibits only contractual provisions waiving liability for illegal acts of the seller. We hold that paragraph six does not violate the Consumer Credit Code because we do not believe this contract would be likely to mislead even an unsophisticated buyer by giving the false impression that he had waived any rights of buyer against seller for seller’s illegal acts.

Affirmed.


author: PER CURIAM.

text:
    Robert FRIAS, Appellant, v. BOARD OF TRUSTEES OF ECTOR COUNTY INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 6900.
    Court of Civil Appeals of Texas, El Paso.
    July 25, 1979.
    Rehearing Denied Aug. 15, 1979.

      Gloria T. Svanas, Odessa, for appellant.
    McMahon, Cox, Tidwell, Locke & Ban-gert, P. C., Robert B. Cox, Jack Q. Tidwell, Mike D. Atkins, County Atty., Odessa, for appellees.
   OPINION

PER CURIAM.

This is a contest of a school bond election in which a majority of the votes cast were in favor of authorizing the Ector County Independent School District to issue 21.6 million dollars in bonds. The funds raised by the issuance of the bonds were to be used primarily for extensive renovating and refurbishing of existing buildings, the construction of two new elementary schools and one new junior high and for a new athletic stadium. On the ballot, Proposition No. One called for $8,754,563.00 in bonds for additions and improvements at existing facilities, Proposition No. Two called for $9,293,193.00 in bonds for new school construction, and Proposition No. Three called for $3,500,000.00 in bonds for the new sports complex. The estimated cost of the issuance of the bonds was $53,000.00. Proposition No. One passed by more than 1,000 votes, No. Two by more than 750 votes, and No. Three by more than 400 votes, all out of a total of more than 17,000 votes.

This case began with 111 pro se Contestants. At a pretrial hearing, only 11 Contestants indicated they would present any affirmative evidence in the case and all others were dismissed. Only 1 of those 11, Robert Frias, has filed an appeal bond and he is the only party before the Court on this appeal, although Contestant’s brief purports to be on behalf of 106 Contestants. Rules 354, 356, Tex.R.Civ.P.; Davies v. Massey, 561 S.W.2d 799 (Tex.1978); Owen v. Brown, 447 S.W.2d 883 (Tex.1969); Warren v. Kyle, 565 S.W.2d 313 (Tex.Civ.App.—Austin 1978, no writ); Roth v. Maryland American General Insurance Company, 454 S.W.2d 779 (Tex.Civ.App.—San Antonio 1970, writ ref’d).

The trial Court, after a lengthy trial, denied all relief sought by the Contestants, and upheld the bond election and the results thereof which favored the issuance of the bonds. The Court subsequently filed Findings of Fact and Conclusions of Law, and amended findings of fact and conclusions of law. The judgment recites:

The Court, having previously refused Contestants’ request for trial by jury, and after presentation of the testimony, evidence and arguments has found that Contestants have failed to prove by a preponderance of the legal and competent evidence (1) a fraudulent election; (2) that there were any invalid votes cast in such election sufficient to change the results thereof; or (3) that a determination of the true will of a majority of the qualified voters in such election is impossible. Based on such findings the Court is of the opinion that judgment should be rendered in favor of Contestees.

Appellant’s first point of error asserts the trial Court erred in not finding as a matter of law that the entire election process is a proper matter for inquiry in a bond election contest. This is basically an attack upon the Court’s Conclusion of Law No. 1 which holds:

1. Misleading statements and misrepresentations of facts by Contestees and school district employees alleged to have occurred prior to the December 5, 1978 bond election did not constitute any proper grounds for an election contest, as only such matters as happened on the day of the election and pertain strictly to the election itself are within the Court’s jurisdiction and may be inquired into or determined by the Court in an election contest.

Appellant relies primarily upon Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012 (1924), where the court said:

An election contest necessarily involves questions of both fact and law. It may be predicated upon a status or upon facts which existed before an election, upon what took place at the election, and perhaps in some instances upon a status or what took place after an election. The ineligibility of a candidate before an election whether arising from lack of age, or from personal misconduct, or other infirmities, the manner of giving notice of the election, appointing election officers, their qualification, the creation of election districts, the preparation of the polls or polling places, the manner in which the ballots may have been prepared, and various other things which of necessity precede an election, are all well known subjects of election contests.

Other courts have held that jurisdiction in election contests is limited to such matters as tend to show that the election was not properly ordered or fairly conducted, such as the failure to give notice of the time and place where the election is to be held or that illegal votes were cast thereat, or some other matter which would impeach the fairness of the result. Trimmier v. Carlton, 264 S.W. 253 (Tex.Civ.App.—Austin 1924), aff’d 116 Tex. 572, 296 S.W. 1070 (1927).

The more recent rule is that only matters that happen on the day of the election and pertain strictly to the election may be inquired into or determined by the court in an election contest. Harrison v. Jay, 280 S.W.2d 636 (Tex.Civ.App.—Eastland 1953), aff’d 153 Tex. 460, 271 S.W.2d 388 (1954). The most recent case to consider the issue is Stelzer v. Huddleston, 526 S.W.2d 710 (Tex.Civ.App.—Tyler 1975, writ dism’d), where the court said:

Elections may be contested only on grounds expressly or impliedly authorized by the Election Code. 21 Tex.Jur.2d Elections, sec. 158, p. 413. Article 9.15 of the Texas Election Code authorizes the courts to declare an election void in those instances where it appears that it is impossible to ascertain the true result of an election and in instances where such a number of legal voters were, by the officers or the managers of the election, denied the privilege of voting so as to change the result of the election. In an election contest only such matters as happened on the day of the election and pertaining strictly to the election itself may be inquired into or determined by the courts. Harrison v. Jay, 153 Tex. 460, 271 S.W.2d 388 (1954); Oser v. Cullen, 435 S.W.2d 896 (Tex.Civ.App., Houston, 1968, dismissed). We fail to find any evidence showing that any of the school’s trustees or any other official of the School District stated to the public that only a ‘slight’ increase of taxes would be necessary to support the bond issue. But even if such were the case, under the foregoing rules of law, such alleged misleading statements being made prior to the election could not be inquired into or considered by the court.

Recognizing the conflict in these cases, we feel compelled to follow the more recent authorities. As noted in an article by Josias Wheat entitled “The Statutory Election Contest,” 21 Texas Bar Journal 629 (1958), “The great weight of authority of this state would appear to be * * * that the courts’ jurisdiction is limited to matters happening on the day of the election and pertaining strictly to the election.” Even if we should be wrong in this regard, the election was a correct and proper one for reasons hereafter discussed under the remaining points of error. Point of Error No. 1 is overruled.

The next point asserts the trial Court erred in finding that the misleading statements and material misrepresentations of fact by school trustees and school employees made it impossible to ascertain the true will of the majority of the voters. In this case, which was required to be tried to the Court as a statutory procedure, the trial Judge was necessarily the trier of facts and he determined the credibility of witnesses and the facts which were proven. His second and fourth Findings of Fact state:

2. No material misrepresentations of fact or misleading statements were made by Contestees or the employees of such school district prior to the December 5, 1978 school bond election.
4. There were no illegal or fraudulent votes cast in the December 5, 1978 school bond election.

The evidence supports those findings. Even if we consider matters which might have affected the election at times prior to election day, there is no proof that those matters were of such nature as to affect the result of the election. There is no proof of any fraud, and no voters testified that they were misled or believed what is now contended to be misrepresentations or that such affected their vote. In Marks v. Jackson, 130 S.W.2d 925 (Tex.Civ.App.— Galveston 1939, writ dism’d), the court considered a contest of a school bond election and said:

Two well-settled rules of law governing such controversies as the one at bar may be thus stated:
(1) ‘ * * * In a statutory election contest within the purview of cited chapter 9, title 50, article 3041 et seq., of our Revised Statutes, such as this one was, the scope of the court’s inquiry is limited to matters pertaining strictly and directly to the election itself, together with happenings on the date thereof, such as the casting and counting of ballots voted therein, as well as the action and conduct of the officers holding it.’ Border v. Abell, Tex.Civ.App., 111 S.W.2d 1186, 1188, writ of error refused.
(2) In an election-contest, the burden is on the contestants to allege and prove either that a different result should have been reached by counting or not counting certain specified votes; or that the irregularities in the conduct of it were such as to render it impossible to determine the true will of the majority of the voters participating in the election; and irregularities in the conduct of the election, which cannot be demonstrated to have materially affected the result, are immaterial. Hill v. Smithville, etc., (Tex.Com.App.), 251 S.W. 209; Kincannon v. Mills, (Tex.Civ.App.), 275 S.W. 1083, 1084; McCormick v. Jester, 53 Tex.Civ.App. 306, 115 S.W. 278; State v. Etheridge (Tex.Civ.App.), 20 S.W.2d 808; State v. Fletcher (Tex.Civ.App.), 50 S.W.2d 450; Wilmarth v. Reagan (Tex.Civ.App.) 231 S.W. 445.

Point of Error No. 2 is overruled.

The next point asserts the trial Court erred in not requiring the exclusion of all votes cast by disqualified voters as specified by the Texas Constitution. Article VI, section 1, of the Texas Constitution and Article 5.01 of the Texas Election Code does prohibit certain classes of people, such as idiots and lunatics, paupers and convicted felons from voting in an election. The argument under this point seems to be based upon a motion filed by Contestant, George Roeder, to declare the election void. In the first place, this Contestant did not appeal the Court’s ruling on his motion, and he is not before this Court as an Appellant. The trial Court found that no illegal or fraudulent votes were cast in the bond election and the evidence supports that finding. The one Contestant who has appealed had the burden of proof to show that there were enough illegal votes cast to change the results of the election. There is no proof to meet that burden in this case. Merely alleging irregularities does not meet the burden of proof. Fox v. Nail, 294 S.W.2d 407 (Tex.Civ.App.—El Paso 1956, no writ). Point of Error No. 3 is overruled.

The next point asserts the trial Court erred in finding that corporate contributions in violation of Texas Statutes were permissible in the school bond election. Article 14.06 of the Texas Election Code makes it unlawful for corporations and labor organizations to make a contribution or expenditure for a political committee. In this case, there was a political committee, named United for Odessa, which received contributions from several corporations and used such money to promote passage of the bond issue.

Only last year, the United States Supreme Court in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), held a Massachusetts statute prohibiting corporate expenditures to influence referendum elections to be an unconstitutional abridgment of free speech under the First and Fourteenth Amendments. See “Corporations’ Right to Free Speech in Referendum Elections: First National Bank v. Bellotti,” 32 Sw.L.J. 1359 (1979).

On June 6, 1978, the Attorney General of Texas in Opinion No. H-1175, based largely upon the holding in Bellotti, said:

Insofar as article 14.06 Texas Election Code, prohibits corporations from making contributions and expenditures ‘for the purpose of aiding or defeating the approval of any measures submitted to a vote of the people of this state or any subdivision thereof,’ it is unconstitutional.

We conclude that that opinion is correct. Point of Error No. 4 is overruled.

The next point asserts the trial Court erred in denying Contestants’ constitutional right of trial by jury. Both the Seventh Amendment to the United States Constitution and Article I, Section 15, of the Texas Constitution guarantee the right of a trial by jury. But those provisions were enacted to protect rights known at common law. This case does not involve a common law right. Johnson v. Stevenson, 170 F.2d 108 (5th Cir. 1948, cert. denied 336 U.S. 904, 69 S.Ct. 491, 93 L.Ed. 1069). This contest is strictly a statutory right. The courts of this State have consistently held that in an election contest the contestants are not entitled to a trial by jury. Boroughs v. Williamson, 312 S.W.2d 717 (Tex.Civ.App.— El Paso 1958, writ dism’d); Rouw v. Harrington, 281 S.W.2d 746 (Tex.Civ.App.—San Antonio 1955, writ dism’d); 3 McDonald, Texas Civil Practice Section 11.02 (1970). Point of Error No. 5 is overruled.

The next contention is that the trial Court erred in dismissing the pro se Contestants at a hearing on a plea in abatement. None of those Contestants have filed an appeal bond, and they are not before this Court. The issue has not been preserved and the sixth point of error is overruled.

The seventh point contends the trial Court abused its discretion at the plea in abatement hearing. Again, the parties affected have not perfected an appeal and the point of error is overruled.

The last point of error asserts the trial Court erred in finding no irregularities occurred in the conduct of the bond election which rendered it impossible to determine the will of a majority of the voters. Giving the Contestants the benefit of the doubt and concluding that there may have been in some instances a failure to strictly follow the provisions of the Election Code, there is no evidence of any election fraud, no evidence that the voters were deceived, and certainly no evidence that there were a sufficient number of improper or illegal votes cast as would have changed the results of the election as to any one of the three propositions submitted to the voters. In Little v. Alto Independent School District of Alto, Cherokee County, Texas, 513 S.W.2d 886 (Tex.Civ.App.—Tyler 1974, writ dism’d), the court considered a contest in a school bond election. In commenting upon the contentions that there had been a failure to strictly follow the Election Code, the court said:

In general, the statutes regulating the manner of holding an election are directory and a departure from their provisions will not ordinarily invalidate an election, unless such departure affects or changes the results of the election. Hill v. Smithville Independent School District, 251 S.W. 209 (Tex.Com.App., 1923, opinion adopted); Kincannon v. Mills, 275 S.W. 1083 (Tex.Civ.App., Waco, 1925, writ ref’d); Baker v. Scranton Independent School District, 287 S.W.2d 210 (Tex.Civ.App., Eastland, 1956, n. w. h.); Minthorn v. Hale, 372 S.W.2d 752 (Tex.Civ.App., Beaumont, 1963, n. w. h.); Sawyer v. Board of Regents of Claredon Junior College, 393 S.W.2d 391 (Tex.Civ.App., Amarillo, 1965, n. w. h.). While it is true that statutory enactments concerning elections must be strictly enforced to prevent fraud, they must also be liberally construed in order to ascertain and effectuate the will of the voters. Turner v. Teller, 275 S.W. 115 (Tex.Civ.App., San Antonio, 1925, n. w. h.). Therefore this court cannot agree with appellants’ contention that the trial court erred in concluding that there was no fraud in holding the election. There was no showing that any of the alleged irregularities affected or changed the results of the election. The mere fact that some directory provisions of the Election Code were not followed by the election officials would not by itself constitute fraud. Thompson v. Barnes, 399 S.W.2d 399 (Tex.Civ.App., Eastland, 1966, dism’d).

Point of Error No. 8 is overruled.

The judgment of the trial Court is affirmed.


author: OSBORN, Justice.

text:
    Richard L. CHANDLER, Individually and d/b/a Skyline Plumbing & Hardware, Appellant, v. CASHWAY BUILDING MATERIALS, INC., Appellee.
    No. 6851.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 1, 1979.

      Richard L. Chandler, El Paso, for appellant.
    Diamond, Rash, Leslie & Smith, Larry A. Baskind, Alejandro Acosta, Jr., El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a summary judgment entered against a party seeking to recover damages in a suit for wrongful garnishment. We reverse and remand.

In June, 1977, Cashway Building Materials, Inc., sued Richard L. Chandler dba Skyline Hardware in Cause No. 39938-1 in County Court at Law No. 1 in El Paso to recover a debt of $1,276.24. In September, a default judgment was entered for $1,583.75, which amount included the amount of the debt, interest in the amount of $57.51 and attorney fees of $250.00. Execution was issued in November, 1977, for $1,833.75 (recited as being $1,583.75 and $250.00). Another execution was issued in March, 1978, for $1,583.75. The record does not reflect the return on those writs.

In March, 1978, Cashway filed in Cause No. 41705-1 in the County Court at Law No. 1 an Application for Writ of Garnishment after Judgment. El Paso National Bank was named garnishee and the writ was served on it on March 20, 1978. It answered on March 23, 1978, that the account of Skyline showed a balance of $5,945.35. On hearing Chandler’s “Motion to Dismiss Garnishment,” the Court authorized the Bank to release to Chandler any and all amounts over the sum of $1,150.00 which was required to be paid into the registry of the Court and the sum of $275.00 as attorney fees which were awarded to the garnishee.

Subsequently, the attorneys approved an “Agreed Judgment” styled Cashway Building Materials, Inc., Plaintiff, v. Richard L. Chandler d/b/a Skyline Hardware, Defendant, in No. 39938-1, in the County Court at Law No. 1, El Paso County, Texas. That judgment then recites:

“On this day the 24th day of April, 1978, came on to be heard the above styled cause and the parties appeared by and through their attorneys of record and announced to the Court that they had compromised and settled all of the issues of fact and of law in dispute.
On the 4th day of April, 1978, the Court issued an order modifying the writ of garnishment in the case styled CASH-WAY BUILDING MATERIALS, INC., Garnishor v. EL PASO NATIONAL BANK, Garnishee No. 41705-1 ordering the Garnishee to pay into the registry of the Court the sum of $1,150.00 to be taken from the garnished funds. The parties now wish to settle cause No. 39938-1 in the following manner:
1. The sum of $1,000.00 is to be paid from the funds in the registry of the Court to the Plaintiff CASHWAY BUILDING MATERIALS, INC. as an all inclusive settlement.
2. The remaining $150.00 is awarded to the Defendant RICHARD L. CHANDLER d/b/a SKYLINE HARDWARE.
A jury having been waived, the Court proceeded to hear the evidence and argument of counsel supporting such settlement agreement and is of the opinion and finds that such settlement agreement should be and is hereby, approved and made a part of this judgment.
It is accordingly ORDERED, ADJUDGED, AND DECREED that Plaintiff recover from the Defendant the sum of $1,000.00 in accordance with the settlement agreement and that the Defendant be awarded the remaining $150.00. All other relief prayed for is denied.”

The trial judge struck through the cause number as typed on the judgment and with a pen changed the cause number to 41705-1.Thus, we have a judgment reciting “came on to be heard the above styled cause” in which Chandler is named as defendant, being entered in another cause in which he is not defendant and in which the El Paso National Bank is garnishee. That judgment recites that “The parties now wish to settle cause No. 39938-1 * * *” but makes no mention of settling No. 41705-1 in which the judgment was actually entered. Of course, the original judgment in No. 39938-1 became final many months earlier and no new judgment could be entered in that case. Thus, the trial judge entered the judgment in the only pending case between these parties. It appears the parties should have prepared a release of judgment to be filed in No. 39938-1 and an agreed judgment in No. 41705-1 reciting a desire or intention to settle that case. They, of course, did neither.

In May, 1978, Chandler filed this suit against Cashway seeking damages for wrongful garnishment. Cashway answered and filed a motion for summary judgment on the grounds that (1) there was no final judgment, but merely an agreed judgment in the garnishment case, (2) the suit was barred under the doctrine of res judicata, and (3) the claim is barred under the doctrine of estoppel by judgment. Chandler also filed a motion for summary judgment. The trial Court entered judgment as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:
1. The Motion for Summary Judgment filed by Plaintiff CHANDLER is in all things denied;
2. The Amended Motion for Summary Judgment filed by Defendant CASH-WAY in in all things granted;
3. Plaintiff CASHWAY be dismissed and costs of suit be taxed against Plaintiff CHANDLER.”

We don’t know if the Court intended to say “Plaintiff Chandler” or “Defendant Cashway” at the beginning of paragraph 3 of the judgment. The judgment never recites that the Plaintiff take nothing from the Defendant as it should. See 4 McDonald, Texas Civil Practice sec. 17.09.3-C at 69 (1971). This raises a question as to whether there is a final appealable judgment. We conclude that the dismissal after reciting an intention to grant defendant’s motion for summary judgment is a final judgment and such denies all relief sought.

The Appellant presents twelve points of error and in the sixth point urges that the trial Court erred in granting summary judgment when the proof did not establish, as a matter of law, that there was no genuine issue of fact as to one or more of the essential elements of Appellant’s claim. We first consider the contention by the Appellee that there was no wrongful garnishment because there was no final judgment but only an agreed judgment entered in the garnishment case. Whether a garnishment is wrongful depends upon whether the steps taken by the parties seeking the writ comply with the statute authorizing such relief, and not the type of judgment entered. Article 4076, Tex.Rev.Civ. Stat.Ann., authorizes the issuance of a writ of garnishment:

“Where the plaintiff has a valid, subsisting judgment and makes affidavit that the defendant has not, within his knowledge, property in his possession within this State, subject to execution, sufficient to satisfy such judgment.”

The garnishment is wrongful if the facts set forth in the affidavit prescribed by Art. 4076, Tex.Rev.Civ.Stat.Ann. (1966), are untrue. Peerless Oil & Gas Co. v. Teas, 138 S.W.2d 637 (Tex.Civ.App.—San Antonio 1940), aff’d 138 Tex. 301, 158 S.W.2d 758 (1942); Sayeg v. Federal Mortgage Co., 54 S.W.2d 238 (Tex.Civ.App.—Waco 1932, no writ); 27 Tex.Jur.2d Garnishment sec. 141. In this case, Cashway obtained a judgment against Chandler for $1,583.75 but the Application for Writ of Garnishment, which was sworn to as being true and correct, asserted it was based upon a judgment for $1,833.75, “that said judgment is valid and existing,” and that after payment of $500.00 the balance of $1,333.75 remains unsatisfied and that defendant has not, within the knowledge of plaintiff, property in his possession within this state, subject to execution, sufficient to satisfy said judgment. The affidavit incorrectly stated the amount of the judgment and the amount due after the payment.

In Plaintiff’s Original Petition, it is alleged that Cashway’s attorney was advised by the deputy sheriff, who had attempted to complete a writ of execution, as to the location and value of sufficient nonexempt property to satisfy the judgment. If that be true, the affidavit was incorrect in that regard. In order to be entitled to a summary judgment, the burden was on Cashway to conclusively rebut as a matter of law this allegation. Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.1975). There is no such proof in this case. In addition, Cashway in its motion for summary judgment assumed all of the facts of the plaintiff’s original petition to be true. Thus, the Appellee’s first contention fails to support the granting of the motion for summary judgment.

We next consider whether this suit is barred by the doctrine of res judicata or the doctrine of estoppel by judgment. Both doctrines were discussed in Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.1971). In that opinion, the court noted that a person who is not a party, but who controls an action, is barred by the adjudications of litigated matters as if he were a party, where he has a proprietary or financial interest in the judgment or in the determination of a question of fact or law with reference to the same subject matter or transaction. Technically, the garnishment suit was against El Paso National Bank, who was named garnishee in the suit. But Richard L. Chandler appeared, as cross-claimant, and filed a “Motion to Dismiss Garnishment.” Thus, he was not only an actual party before the Court but was, in fact, the real party, whose interest was to be affected by any issue decided by the Court. After all, it was his money the Bank was holding to pay as directed by the Court. Thus, we conclude that Chandler did in fact have a real interest in the garnishment case even though he was not the party sued.

Now, we must decide if the judgment which was entered or the issues decided in the garnishment suit bars this suit for wrongful garnishment. We think not. First of all, a garnishment proceeding is strictly statutory, and the issues to be determined in such proceedings are defined by the statute and the only real issue is whether the garnishee was indebted to the defendant in the main suit or had in its possession effects belonging to him at the time of the service of the writ and the filing of the answer. Smith v. Rogers, 147 S.W.2d 934 (Tex.Civ.App.—San Antonio, 1941, no writ); 27 Tex.Jur.2d, Garnishment sec. 120. The judgment which was entered as an agreed judgment does not determine that the garnishment was proper and based upon a valid and subsisting judgment, and that other requirements of the garnishment statute were properly satisfied. The agreed judgment only purports to show an intent upon the parties to settle the suit for a debt and to divide the funds paid into the registry of the Court, and to deny any additional relief prayed for in that case. There was no issue before the Court as to wrongful garnishment, no relief was sought for that cause of action, and the Court could not make any determination of that issue which would operate as a bar to a suit for wrongful garnishment. Humble Oil & Refining Co. v. Andrews, 285 S.W. 894 (Tex.Civ.App.—El Paso 1926, writ ref’d); 34 Tex.Jur.2d Judgments secs. 492—494.

Certainly, the suit for wrongful garnishment was not a compulsory counterclaim under Rule 97(a), Tex.R.Civ.P., because that claim did not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim, in this case a debt for goods sold. We are mindful of the rule announced in Ogletree v. Crates, 368 S.W.2d 431 (Tex.1963), and Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971), to the effect that the rule of res judicata bars litigation of all issues connected with a cause of action which with the use of diligence might have been tried in a former trial, as well as those which were actually tried. But, that rule applies to the cause of action which was actually filed by the plaintiff and not cross-actions which might have been filed by a defendant, unless, of course, the compulsory counterclaim rule is applicable. The court addressed that issue in Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973). In that case, the issue arose as to whether a take nothing judgment in a suit on an express contract to furnish labor and material was res judicata in a second suit between the same parties on the theory of quantum meruit. The court held it was but only because the quantum meruit claim was a compulsory counterclaim to the defendant’s cross-action for breach of contract in the first suit. In reaching that result, the court said:

“The intermediate court reasoned that since claims on the express contract and in quantum meruit could have been urged in the first suit, the final judgment in that suit is res judicata of the present suit. Stated differently, the court has held that a judgment on one claim or cause of action is res judicata of all claims and causes of action arising out of the same transaction and that could have been urged in the suit. This conclusion is sound with respect to counterclaims that are compulsory under the provisions of Rule 97, Texas Rules of Civil Procedure. There is, however, no similar rule requiring a plaintiff to join all claims arising out of the same transaction, and the Court of Civil Appeals has misconstrued our opinion and holding in Gravis. See Rule 51, T.R.C.P.”

Certainly, if the plaintiff is not required to join all claims arising out of the same transaction, the defendant is not required to join as a cross-action a claim arising out of a different transaction.

It should be noted that a 1971 amendment to Rule 97(a) provides:

“ * * * that a judgment based upon a settlement or compromise of a claim of one party to the transaction or occurrence prior to a disposition on the merits shall not operate as a bar to the continuation or assertion of the claims of any other party to the transaction or occurrence unless the latter has consented in writing that said judgment shall operate as a bar.”

We believe that amendment was to provide for the problem arising from such cases as Akers v. Simpson, 445 S.W.2d 957 (Tex.1969). See Texas Procedure, 48 Texas L. Rev. 978 (1970), and McElhaney, Texas Civil Procedure, 24 Sw.L.J. 179 at 184 (1970). But it appears that even if this claim for wrongful garnishment did arise out of the opposing party’s claim, the compulsory counterclaim rule would not be applicable under the 1971 amendment of the Rule as set forth above. Clearly, the agreed judgment which was based upon a settlement of Cashway’s claim does not reflect that Chandler has consented in writing that the judgment shall bar his claim.

In Hardeman & Son v. Morgan, 48 Tex. 103 (1877), the court recognized the right of a defendant in an attachment suit to file a cross-action for wrongful attachment but concluded that he is not compelled to seek redress in this way. The court said: “He may undoubtedly, if he prefers it, bring his separate suit in the court having jurisdiction of such a demand, without regard to the tribunal in which the plaintiff’s action may be pending.” In this connection, we note that Chandler’s suit for wrongful garnishment which seeks 1.5 million dollars in damages was not within the jurisdiction of the County Court at Law where the garnishment proceedings had been filed by Cashway. See 2 McDonald, Texas Civil Practice sec. 7.49 — (III)(a) (1970).

Subsequent to the adoption of the compulsory counterclaim rule, the court in Capetillo v. Burress & Rogers, 203 S.W.2d 953 (Tex.Civ.App.—Galveston 1947, writ ref’d n. r. e.), on motion for rehearing reached the same results and said:

“A wrongful sequestration is in the nature of an abuse of process of court procured by a party to a suit. It does not arise out of a transaction or occurrence which is being litigated, but arises out of the wrongful act of a party to the litigation in seeking to enforce rights arising out of the transaction or occurrence which is the subject matter of his suit. We must therefore hold that Rule 97(a) is not applicable.”

The doctrine of res judicata and the effect of the more recent cases by the Texas Supreme Court have been discussed at length in a recent law review article. See Steakley and Howell, “Ruminations on Res Judicata,” 28 Sw.L.J. 355 (1974). We find nothing in that discussion to suggest a rule other than the one we have applied to the facts of this case.

We sustain the Appellant’s Point of Error Number Six, and reverse and remand the case to the trial Court.


author: PHILLIPS, Chief Justice.

text:
    Victor Anthony GERSTNER, Appellant, v. Woodrow F. WILHELM, et ux., Appellees.
    No. 12968.
    Court of Civil Appeals of Texas, Austin.
    Aug. 1, 1979.
    Rehearing Denied Aug. 22, 1979.

      Craig E. Davis, Austin, for appellant.
    James H. Arnold, Jr., Austin, for appel-lees.
   PHILLIPS, Chief Justice.

This case involves interference with an easement of right of way over appellant’s property. Pursuant to findings by a jury, the trial court awarded appellees damages, including punitive damages and enjoined appellant from any further interference.

We affirm the judgment.

The parties hereto each purchased a fifteen-acre tract of land within a few months’ time of one another. Both tracts were purchased from the same seller. Appellant’s tract was long and narrow and abutted a roadway. Appellees’ tract was rectangular in shape and adjoined appellant’s tract on the end opposite the roadway. The only way that appellee could reach his property was over a right of way easement along one edge of appellant’s narrow strip, which easement was granted to appellees by the seller. There is no conflict over the existence or the location of the easement which granted appellees “. the free and uninterrupted use, liberty and easement of passing in and along a certain passageway or road across the said premises . and being 40 feet in width and to use such passageway or road at all times in common with the Grantee . ”

The case was well developed, there being a statement of facts of some 440 pages. The jury found that appellant interfered with appellees’ use of the easement, that the interference caused $700 damage to the road, $770 damage for loss of use of the road easement, no damage for mental anguish, and $1400 in exemplary damages for “heedless and reckless” disregard of appel-lees’ rights.

The judgment also granted an injunction requiring removal of both gates and portions of the adjoining fences so as to leave two 40-foot openings, and prohibiting appellant from interfering with the roadway or with appellees.

Appellant is before us on seventeen points of error which devolve into several principal questions.

The first is whether or not appellant interfered with appellees’ right of ingress and egress over the right of way and the concomitant questions as to the quan-turn of the evidence necessary to establish such interference. We hold that there was ample evidence of such interference so as to sustain the jury’s findings as to actual damage to the road and the damages for loss of use of the road.

In summary, appellant “root plowed” the easement making passage difficult, plowed certain portions of his land so as to cause excessive drainage over a part of the easement, making passage difficult in wet weather and, in addition, actually threatened to shoot appellee with a shot gun due to the easement controversy. There is also evidence of expenditures made by appellees on the roadway which, because of appellant’s actions with respect thereto, were wasted.

The jury found that appellant through his acts and conduct with respect to the easement acted in heedless and reckless disregard of the appellee’s rights and those of his wife. The accompanying definition of “heedless and reckless disregard” was that it means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to show conscious indifference to the rights, welfare, or safety of the person affected. The award was $1400 for punitive damages. Exemplary damages may be awarded if the act causing actual damages is a wrongful act done intentionally in violation of the rights of the plaintiff. Tennessee Gas Transmission Co. v. Moorhead, 405 S.W.2d 81 (Tex.Civ.App.1966, writ ref’d n. r. e.).

In our judgment the evidence supports these findings. Not only was appellant’s physical conduct with respect to the right of way intentional, willful and well calculated, but his threat to appellees could only be described as malicious and, in fact, caused appellees to practically abandon the use of their property for nearly a year. When they did go to the property, they did not use the easement at all but proceeded through an adjoining field belonging to a neighbor.

Appellant has a point of error that the evidence relating to the threat was inadmissible, but does not make any argument or cite any authority in support. Points of error are required to be supported by argument and authority, Tex.R.Civ.P. 418(e), and if not supported, the points are waived. Nolan v. Bettis, 577 S.W.2d 551 (Tex.Civ.App.1979, writ ref’d n. r. e.); Rayburn v. Giles, 182 S.W.2d 9 (Tex.Civ.App.1944, writ ref’d). The point is overruled.

Appellant alleges error of the trial court in refusing to submit a special issue as to whether appellant “instructed or consented to the communication of a threat of future harm to Plaintiffs from Defendant.” There was no error in refusing to submit the issue, because appellant’s consent is immaterial. It only matters that the threat was conveyed to appellees, and that they suffered actual damages as a consequence.

Appellant’s next points concern the injunction requiring removal of gates and fences. The language of the easement is that the appellees should have “free and uninterrupted use, liberty and easement of passing . . . ” Whether the appellees have a right to a roadway free from gates and bars depends upon the terms of the grant, its purpose, the nature and situation of the property, and the manner in which it is used. See Arden v. Boone, 221 S.W. 265 (Tex.Comm’n App.1920, jdgmt approved); Burns v. McDaniel, 158 S.W.2d 826 (Tex.Civ.App.1942, no writ). There was evidence in the record that prior to appellant’s purchase of his land, the seller explained to him in a letter and over the phone that if the roadway was ever fenced the fence was to be along his side of the roadway. It is, therefore, a reasonable construction of the terms of the easement that appellees were to have a way free of gates and fences.

Appellant contends error by the trial court in failure to submit a requested instruction. It stated:

“Whether the plaintiffs are entitled to a right of way easement unobstructed by gates depends upon:
1. the terms of the grant of the easement in the contract of sale,
2. the provision for which the grant was made,
3. the nature and situation of the property, and
4. the manner in which the property had been used before the grant of the easement.”

There is no doubt that appellant’s requested instruction is a correct statement of the law. However, the trial court did submit an instruction, to which appellant did not object. Appellant is only complaining of the omission of the above quoted material. See Hodges, Special Issue Submission in Texas, § 65 at 162 (1959). The instruction given by the court was:

“You are instructed that the owner of property which is subject to an easement has the absolute right to use the easement in a manner not inconsistent with the purpose for which the easement was intended. The owner of property which is subject to an easement has the duty to abstain from any use of the property which hinders or obstructs the easement holder in his enjoyment of the easement and the use and purposes for which the easement was created.”

The court further instructed the jury as to the meaning of “free and uninterrupted.”

In our view, the requested instruction was only a variation of the instruction that was given and would not have materially aided the jury in arriving at its verdict. See Yellow Cab and Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92 (1955). The trial court did not commit error in refusing the requested instruction.

Because of the language of the easement and the factual circumstances surrounding the grant, the court properly entered judgment that Gerstner remove the fences and gates. Stuart v. Larrabee, 14 S.W.2d 316 (Tex.Civ.App.1929, writ ref’d).

The judgment of the trial court is in all things affirmed.


author: RENDLEN, Judge.

text:
    MARAN-COOKE, INC., Plaintiff-Appellant, v. PURLER EXCAVATING, INC., et al., Defendants-Respondents.
    No. 60741.
    Supreme Court of Missouri, En Banc.
    June 29, 1979.
    Rehearing Denied Sept. 11, 1979.

      Edward C. Ahlheim, Niedner, Moerschel, Ahlheim & Bodeaux, St. Charles, for plaintiff-appellant.
    Edwin Rader, Clayton, for defendants-respondents.
   RENDLEN, Judge.

Appeal from summary judgment denying the claim of Maran-Cooke, Inc., in its suit to enforce a statutory lien against the real property of Rountree Development Corporation for professional engineering services rendered Rountree. We affirm.

On November 5, 1970, Maran-Cooke contracted with Rountree Development Corporation to perform engineering services for the design and construction of Rountree’s real estate development in St. Charles County. Though all work under its contract was performed by Maran-Cooke through licensed engineers, Maran-Cooke itself had not obtained the certificate of authority required by § 327.401.2. Rountree paid Maran-Cooke more than $40,000 under the contract before the project faltered late in 1974. On October 30 of that year Maran-Cooke filed liens in the circuit court of St. Charles County totaling $33,391.62 plus interest for the unpaid engineering services performed to that date. On April 25, 1975, Maran-Cooke brought this equitable action to enforce its lien, naming as defendants Rountree Development Corporation, holders of various deeds of trust on the affected real estate and Purler Excavating, Inc., which had previously filed a mechanic’s lien against the property. Maran-Cooke also filed on the same date a cross-bill in the pending action of Purler Excavating.

All named trustees and holders of deeds of trust moved for summary judgment against Maran-Cooke and the trial court sustained the motion. Following the trial court’s order consolidating the actions and finalizing its summary judgment in favor of defendants, plaintiff appealed to the Eastern District of the Missouri Court of Appeals. In view of appellant’s constitutional attack on the statute requiring professional engineering corporations to obtain an annual authorization to practice from the Missouri Board for Architects, Professional Engineers, and Land Surveyors, § 327.401.2, that court ruled exclusive jurisdiction lay in this Court and transferred the cause. Mo.Const., art. V, § 3. Our review of the record and briefs reveals that only a question of application rather than construction of the federal and state constitutions is involved and thus the cause properly falls within the jurisdiction of the Court of Appeals, Mo.Const., art. V, § 3 (as amended 1970), but in the interest of economizing judicial time we shall resolve the issues here.

Under the 1969 revisions of chapter 327, RSMo, not only must a professional engineer obtain a “certificate of registration” in order to practice his profession, § 327.191, but any corporation constituting the 'medium of practice for professional engineers must obtain a “certificate of authority” in order to offer engineering services. § 327.-401.2. Chapter 327 implicitly distinguishes between the two types of certification by listing them separately in many places. See, e. g., §§ 327.441, .461. However, in other instances chapter 327 simply refers to a “registered professional engineer” in contexts indicating that phrase includes persons holding “certificates of registration” and also organizations holding “certificates of authority.” See §§ 327.421, .451.1.

The right to a materialman’s lien is purely a creation of statute and did not exist at common law. Goodner v. Mosker-Roe Abstract & Guaranty Co., 314 Mo. 151, 282 S.W. 698 (1926); Herbert & Brooner Constr. Co. v. Golden, 499 S.W.2d 541 (Mo.App.1973). The same may be said of the lien afforded professional engineers by S.S. S.B. 217, Laws 1971, p. 424 (codified at § 429.015.1, RSMo Supp.1975). The relevant portion of § 429.015.1 provides:

Every registered architect, registered professional engineer or registered land surveyor, who does any architectual, engineering or land surveying work upon or performs any architectural, engineering or land surveying service directly connected with the erection of repair of any building or other improvement upon land under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this chapter, shall have for his architectural, engineering or land surveying work or service so done or performed, a lien upon the building or other improvements and upon the land belonging to the owner or proprietor on which the building or improvements are situated, to the extent of one acre.

The statute quite clearly requires that architects, professional engineers, or land surveyors who wish to claim its benefits be “registered.”

It is implausible to suggest the legislature used the phrase “registered professional engineer” in § 429.015.1 as restricting the right to pursue a lien only to natural persons or, on the other hand, as limiting the liens only to registered engineers but not so limiting corporations through which they may practice. Stated otherwise we believe the legislature intended to extend the lien right only to registered engineers and also to registered corporations. “The law favors a construction of a statute which avoids unjust or unreasonable results.” Maryland Casualty Co. v. General Electric Co., 418 S.W.2d 115, 118 (Mo. banc 1967). What has been said about mechanics’ liens applies as well to these statutory liens: “[0]ur mechanic’s lien law is remedial in nature . . . [I]ts purpose is to give security to mechanics and materialmen for labor and materials furnished in improving the owner’s property, . . . and . . the law should be construed as favorable to those persons as its terms will permit.” R. L. Sweet Lumber Co. v. E. L. Lane, Inc., 513 S.W.2d 365, 371 (Mo. banc 1974), quoting Kinnear Mfg. Co. v. Myers, 452 S.W.2d 599, 602 (Mo.App. 1970) (citations omitted). Professional corporations could hardly be the advantageous mode of practicing the engineering profession that the legislature contemplated in § 327.401.1 were they not capable of enforcing claims through liens. On the other hand, not just any corporation engaged in these professions may claim the statutory lien created by § 429.015. The legislature specified that only “registered” architects, “registered” professional engineers, and “registered” land surveyors could have the lien, and it would ignore the clear import of that language to conclude professional corporations could have the lien without obtaining the requisite certificates of authority. The legislative intent emerges as permitting only those corporations that have secured a certificate to claim a lien under § 429.015. Because Maran-Cooke did not obtain a certificate, it simply has no lien to claim.

This brings us to Maran-Cooke’s constitutional challenge to § 327.401.2 wherein it argues that the statute unconstitutionally discriminates against professional engineering corporations by requiring them to secure the certificate of authority while professional engineering partnerships are not so required. The constitutional validity of statutes that neither touch on fundamental civil rights nor involve suspect classifications must be upheld if a rational basis for the legislative classification exists. City of St. Louis v. Liberman, 547 S.W.2d 452 (Mo. banc), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977). As early as 1915, the Supreme Court of the United States applying the rational basis standard rejected a similar equal protection challenge to a Missouri statute that mandated the filing of affidavits of compliance with state antitrust laws by corporations but not partnerships. Mallinckrodt Chemical Works v. Missouri ex rel. Jones, 238 U.S. 41, 55-56, 35 S.Ct. 671, 59 L.Ed. 1192 (1915). In this case, one readily apparent rational basis for the requirement for certification in § 327.401 is to assist the Board for Architects, Professional Engineers, and Land Surveyors in assuring compliance with the specification of subd. (1) of subsection 2 thereof: “At all times during the authorization or any renewal thereof the directors of the corporation shall have assigned responsibility for the proper conduct of all its . . professional engineering . activities in this state . . . to a professional engineer registered and authorized to practice engineering in this state . . . .” Accordingly, the constitutional challenge fails.

Finally, Maran-Cooke urges that equitable principles justify its recovery for the services rendered Rountree. Such principles cannot override the mandate of the legislature in § 429.015 that only authorized corporations may have a lien, and it is to that branch of government that arguments concerning the wisdom and equity of the statute should be addressed.

The judgment of the circuit court of St. Charles County is affirmed.

MORGAN, C. J., BARDGETT, SEILER and SIMEONE, JJ., WELBORN, Special Judge, and FINCH, Senior Judge, concur.

DONNELLY, J., not sitting.

WELLIVER, J., not participating because not a member of the Court when cause was submitted.

      . Section 327.401.2 reads in relevant part:
      Any domestic corporation formed under the general and business corporation law or under the professional corporation law of this state, or any foreign corporation, now or hereafter organized and having as one of its purposes the practicing of architecture or professional engineering or land surveying and any existing corporation which amends its charter to propose to practice architecture or professional engineering or land surveying shall obtain a certificate of authority from the board which shall be renewed annually in accordance with the provisions of section 327.171 or 327.261 or 327.351, as the case may be, .
      All statutory citations are to RSMo 1969 unless otherwise indicated.

      . One such holder’s whereabouts were averred to be unknown in Maran-Cooke’s pleadings and that holder neither joined in the answer nor in the motion for summary judgment. The trustee for that deed of trust did file answer and join in the motion for summary judgment, however.

      . Respondents relied below on § 327.461: “Every contract for . . engineering . services entered into by any person who is not a registered or authorized professional engineer . . . shall be unenforceable by the unregistered or unauthorized . professional engineer . . . Section 327.-011, subd. (6), defines “person” as “any person, corporation, firm, partnership, association, or other entity.” The conclusion we reach as to § 429.015 makes it unnecessary for us to consider the effect of § 327.461.