Gulf Reduction Corp. v. Boyles Galvanizing & Plating Co., 17122

• Decision Date: 19 June 1970
• Docket Number: No. 17122,17122
• Citation: 456 S.W.2d 476
• Parties: GULF REDUCTION CORPORATION, Appellant, v. BOYLES GALVANIZING & PLATING COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 476

456 S.W.2d 476

GULF REDUCTION CORPORATION, Appellant, v. BOYLES GALVANIZING & PLATING COMPANY et al., Appellees.

No. 17122.

Court of Civil Appeals of Texas Fort Worth.

June 19, 1970.

Hooper & Kerry, and Michael R. Burkett, Fort Worth, for appellant.

Cantey, Hanger, Gooch, Cravens & Munn, and Sloan B. Blair, Fort Worth, for appellees.

OPINION

LANGDON, Justice.

This case is one in which the appellant seeks to substitute solvent defendants, Boyles Galvanizing and Plating Company and W. M. Boyles, as the alter ego for an insolvent judgment debtor, Sabine Galvanizing Company.

The court without a jury rendered judgment for the appellees, Boyles Galvanizing and Plating Company and W. M. Boyles, on January 7, 1970. No findings of fact or conclusions of law were requested or filed.

The appeal is based upon six points of error. By the first three it is contended that the evidence, as a matter of law, showed or conclusively established that appellee, W. M. Boyles, was the alter ego of Sabine Galvanizing Company and that there is no evidence to support a finding to the contrary. By its points four, five and six, respectively, the appellant insists that the court erred in rendering judgment for the appellees because its case was not barred by the Statute of Limitations, res judicata or estoppel by judgment.

We affirm.

We will forego a discussion of the first three points involving the question of alter ego other than to state that we have carefully reviewed the entire record in this cause and have concluded that there is sufficient evidence to support the court's holding that Boyles was not the alter ego of Sabine Galvanizing Company.

Since, in our opinion, the judgment of the trial court must be affirmed on the questions relating to limitation and res judicata we will confine our opinion to these matters for the sake of brevity.

The appellant, in a former suit based upon actions which occurred in late August of 1962, sought recovery against Sabine Galvanizing Company, and the appellees herein, Boyles Galvanizing and Plating Company and W. M. Boyles. The case was filed in the 17th District Court of Tarrant County, Texas, as Cause No. 28,866-C, styled Gulf Reduction Corporation vs. Sabine Galvanizing Company et al. In said cause the appellant prayed that it have judgment against all three defendants, including the appellees and each of them, jointly and severally, for 'damages hereinabove alleged, for wrongful injunction, conversion, failure to account and collateral conversion thereupon, for all costs of suit, and for such other and further relief to which plaintiff may show itself entitled, at law or in equity.'

At the conclusion of the trial in the former suit, Cause No. 28,866-C the court made findings of fact and conclusions of law which we have summarized in the paragraphs next following.

FINDINGS OF FACT:

1. Beginning about November 18, 1960, plaintiff Gulf Reduction Corporation, hereinafter referred to as Gulf, began selling zinc to Metal Services, Inc., hereinafter called Metal Services, on an open account. These sales continued periodically through its last delivery of zinc and aluminum on May 17, 1962. After allowing all credits for payment, the net amount due the plaintiff by Metal Services was $7,614.31.

2. On June 19, 1961, Metal Services executed a note to Eagle-Picher Company for $23,295.00, and a chattel mortgage securing same, filed in Jefferson County on June 29, 1961, covering prime western zinc located at the Metal Services premises, Jefferson County, Texas, together with all such zinc added to the inventory on the premises at later dates.

3. About July 1, 1962, Sabine Galvanizing Company, hereinafter called Sabine, took possession of the premises and assets of the insolvent Metal Services under a contract to purchase that business.

4. The above note and chattel mortgage were assigned to Sabine by Eagle-Picher Company, for value, on July 9, 1962, and the assignment was filed July 12, 1962, in the Chattel Mortgage Records of Jefferson County, Texas. Assignment of the note and chattel mortgage to Sabine from Eagle-Picher Company was made to protect Sabine's position in buying the assets of Metal Services.

5. At the time of the assignment of said note and chattel mortgage, payment of said note was in default and continued in default by the said Metal Services at all times material hereto.

6. On the date of the assignment, the principal debt due and owing on said note and at all times material thereafter was $14,182.95.

7. Sabine placed said note in the hands of an attorney for collection before the sale on August 21, 1962, hereinafter referred to.

8. That while in possession of the premises of Metal Services and acting to protect its interest in buying the assets of the insolvent Metal Services, Sabine placed all of the zinc into kettles and drums marked 'Propety of Sabine Galvanizing Company, Inc.' On July 30, 1962, Sabine sent out a notice to all creditors of the insolvent Metal Services that it intended to buy in bulk all of the assets of that company.

9. On August 6, 1962, Gulf filed suit against Metal Services in Cause No. 600,059 in the District Court of Harris County, Texas, on a sworn account and on the same date sued out a Writ of Attachment.

10. On August 10, 1962, the Sheriff of Jefferson County levied the Writ of Attachment on Metal Services galvanizing plant in which the zinc in question was located.

11. On August 13, 1962, Sabine sued for and obtained a temporary restraining order in the District Court of Jefferson County, Texas, in Cause No. B-79556, restraining Gulf and the Sheriff of Jefferson County from taking possession of any zinc located on the premises of Metal Services or in any way interfering with Sabine's use, possession and ownership of the said zinc. Pursuant to the injunction, the Sheriff of Jefferson County relinquished control and possession of the zinc to Sabine.

12. On August 21, 1962, Sabine's attorney conducted a nonjudicial sale in his office in Beaumont, Texas, of the zinc situated on the premises of Metal Services and Sabine purchased the zinc for the sum of $21,194.26 at that sale.

13. A date was set for a hearing on the temporary restraining order that date being August 23, 1962.

14. On May 13, 1963, plaintiff obtained a Summary Judgment against Metal Services for the principal amount of $7,614.31, plus the sum of $1,522.86 as attorney's fees, plus interest of $171.00, plus interest from the date of judgment on all sums at six percent (6%).

15. Defendants did not at any time file suit to try the right to property of the zinc in question.

16. On August 21, 1962, the day of the sale by Sabine, the zinc was picked up by Sabine and sold to the defendant Boyles Galvanizing and Plating Company and other corporations wholly owned by W. M. Boyles and his family.

17. The temporary restraining order obtained by defendant Sabine as described in Finding 11 above, caused no monetary damage to plaintiff.

CONCLUSIONS OF LAW:

1. The defendant Sabine had a valid chattel mortgage lien on the zinc in question securing a debt in the principal amount of $14,182.95, plus attorney's fees in the amount of $1,418.00, making a total of $15,600.95, which lien was superior to the attachment lien obtained by the plaintiff.

2. The plaintiff...