Grizzaffi v. Lee

• Decision Date: 27 December 1974
• Docket Number: No. 17565,17565
• Citation: 517 S.W.2d 885
• Parties: Luke GRIZZAFFI, Appellant, v. W. G. LEE, Appellee.
• Court: Texas Court of Appeals

Page 885

517 S.W.2d 885

Luke GRIZZAFFI, Appellant, v. W. G. LEE, Appellee.

No. 17565.

Court of Civil Appeals of Texas Fort Worth.

Dec. 27, 1974.

Rehearing Denied Jan. 24, 1975.

Michael J. Whitten, Denton, for appellant .

Griffin, Shelton & Eames, and Mike Griffin, Denton, for appellee.

OPINION

LANGDON, Justice.

This appeal is from a local option election contest in which a motion for summary judgment was granted.

A local option election called by the County Judge of Denton County was held on October 29, 1973, to determine whether or not to allow, 'the legal sale of all alcoholic beverages, including mixed beverages,' within the corporate limits of Corral City. The appellant was duly appointed and served as the presiding Judge in the local option election. As a duly registered and qualified voter in and for Corral City he cast his vote 'for' the proposition. The Commissioners' Court of Denton County, Texas, canvassed the votes and on November 5, 1973, declared that the 'wets' had carried the election by a vote of 9--4 and entered its order to this effect.

On December 4, 1973, the appellee, W. G. Lee, filed his notice of election contest and his original petition naming John Lawhon, the County Attorney of Denton County, as the contestee. The sole basis of appellee's contest was that he and others similarly situated had been denied the right to vote in the local option election.

On December 5, 1973, John Lawhon, County Attorney, Denton County, Texas, acknowledged notice in accordance with the statute and filed his 'Reply' which in its entirety states, 'That it is up to the Court to make the decision in the case and that we, by filing this reply, are not up-holding the liquor election in any way but are merely filing this reply to fulfill the requirements of the statute. It is further stated that the filing of this reply ends and terminates any part this office is required to have or will have in this election contest.'

On December 11, 1973, the appellant intervened under Rule 60, Texas Rules of Civil Procedure, by filing his 'Reply of Intervening Contestee.'

On December 19, 1973, the appellee filed a motion to strike the appellant's reply in intervention on the ground that the appellant was not eligible as a contestee under Article 9.31 of the Texas Election Code, V.A.T.S.

On January 3, 1974, a hearing was held on the motion and the court granted it and dismissed the appellant as a party. An order to this effect was entered on January 29, 1974.

On January 11, 1974, appellee filed Contestant's First Amended Original Petition, and for the first time contended that the effective date of the incorporation of Corral City was September 10, 1973, and thus the local option election had been improperly held within 18 months from the date of incorporation in violation of Art. 666--40b, Vernon's Ann.Texas Penal Code. The appellant was not served with a copy of this pleading or otherwise notified of its filing.

On January 29, 1974, the Contestant's First Amended Motion for Summary Judgment With Affidavits Attached, was filed. It was based upon pleadings similarly described above in paragraph 11 of the First Amended Original Petition.

On February 1, 1974, the statutory contestee, John Lawhon, acknowledged notice in accordance with the statute of contestant's first amended original petition and filed his reply which was substantially the same as before and in which he was thereby terminating any part, 'this office is required to have in this election contest.'

On February 12, 1974, the trial court signed and entered its order granting the appellee's motion for summary judgment. It was based solely on the court's finding that Corral City did not come into existence until September 10, 1973, and therefore the local option election violated Article 666--40b of the Texas Penal Code which provides that, '. . . any qualified political subdivision holding such election must have been in existence for at least eighteen (18) months.'

Subsequently, on February 14, 1974, appellant filed his motion for new trial and on March 5, 1974, filed his first amended motion for new trial. Hearing was held on said First Amended Motion for New Trial on March 21, 1974, at which time the trial court ruled that appellant was not entitled to present any evidence or arguments concerning the grounds upon which the summary judgment was granted. The court ruled that evidence could only be presented with regard to the other striking the reply in intervention. The trial court further ruled that it would not receive any evidence for the purposes of making a bill of exception, except evidence as to the order striking the intervention.

The appellant by three points of error asserts that the District Court erred (I) in granting appellee's motion to strike appellant's reply in intervention because appellant is (a) a person named as a statutory contestee in Art. 9.31, Texas Election Code, (b) that as a duly registered and qualified voter and a resident of Corral City he was denied equal protection and due process of law by the court's construction of Art. 9.31, supra, and (c) where as here the county attorney refused to defend the declared result of the election that the appellant as a representative of the proponents of the election and one who will be bound by the judgment is entitled to intervene under the doctrine of representation; (II) the District Court erred in granting appellee's Motion for Summary Judgment because (a) Corral City acquired its legal standing and came into existence on September 30, 1971, and had therefore been in existence for 18 months as required by Art. 666--40b, Texas Penal Code, (b) it contravenes the order of the County Judge of Denton County declaring the incorporation of said town of Corral City 'is effective from and after September 30, 1971,' and (c) no proper notice of contestant's first amended original petition or first amended motion for summary judgment or the hearing thereon was given the appellant; (III) the District Court erred in refusing to allow appellant to present at the hearing on motion for new trial any evidence directly attacking the summary judgment or for purposes of a bill of exception, and in refusing to grant appellant's written bill of exception Number One.

We reverse and remand.

The above described points of error will be discussed in the order in which they are above listed.

The county attorney named by the contestant as the statutory contestee, in filing his 'Reply' on the two occasions referred to, was in all probability seeking to follow Attorney General Opinion No . O--1796 appearing in Vol. 2, p. 33, of the Annual Opinion Report of the Attorney General of Texas, February 14, 1940, which states that, 'It is not the duty of the county attorney to defend the validity of a contested local option election. When the county attorney is made contestee and served with notice under Arts. 3043, 3070, R.C.S., it then becomes his duty to prepare and file the written contestee's reply as required by said statutes, and when this is done, he has fully discharged his statutory duty. Art. V, Sec. 21, Constitution of Texas; Arts. 666--32, 666--40a, V.A.P.C.; Arts. 3043, 3069, 3070, R .C.S.; Moore, et al., v. Commissioners' Court of Titus County, (Tex.Civ.App.), 192 S.W. 805.'

The appellant herein did not intervene in this cause until after the county attorney filed his 'Reply' to the effect that he would not have any part in the election contest. It is obvious that such 'Reply' did not constitute a contest. It raised no issues with the allegations of the contestant. The latter was unopposed. The proponents of the election were not to be represented unless someone would come to their defense.

It was at this time that the appellant, Mayor of Corral City, intervened in the suit.

Clearly he was designated as one of the Statutory Contestees under the provisions of V.A.T.S., Election Code, Art. 9.31. He was a proper party to the contest and fully qualified as such.

Article 9.31, V.A.T.S., Election Code, provides that: 'In any case provided for in the preceding Section (art. 9.30), the county attorney of the county, or if there is no county attorney, the district attorney of the district, Or the mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contest for office; but in no case shall the costs of such contest be adjudged against such contestee, or against the county, city, town, or village which they may represent, nor shall such contestee be required to give bond upon an appeal.' (Emphasis ours.)

It is undisputed that the appellant intervened in the local option election contest in the following capacities: (1) As the Mayor of Corral City; (2) a resident of the incorporated Town of Corral City; (3) as the duly appointed, qualified and acting presiding Judge of the local option election; (4) as a duly qualified and registered voter in said town; (5) as a representative of the proponents of the election; and (6) as a person having a direct and significant financial interest in the out-come of the election contest and as a representative of others having such interests.

The court in its additional findings of fact filed on May 13, 1974, found that Luke Grizzaffi was at the time of the local option election, held on October 29, 1973, the contest thereof and at all times since the elected and acting Mayor of the Town of Corral City, a resident thereof, a duly qualified and registered voter thereof and was the duly qualified, appointed and acting election Judge of said local option election. That in the elections in question, nine (9) persons voted for and four (4) persons against the legal sale of all alcohol beverages, including mixed beverages.

It is of interest at this point...