Blackstock v. Tatum, 14670

• Decision Date: 18 November 1965
• Docket Number: No. 14670,14670
• Citation: 396 S.W.2d 463
• Parties: H. W. BLACKSTOCK et al., Appellants, v. Lester L. TATUM et al., Appellees.
• Court: Texas Court of Appeals

Page 463

396 S.W.2d 463

H. W. BLACKSTOCK et al., Appellants, v. Lester L. TATUM et al., Appellees.

No. 14670.

Court of Civil Appeals of Texas, Houston.

Nov. 18, 1965.

Rehearing Denied Dec. 9, 1965.

Nowlin Randolph, Houston, for appellants.

Mills, Shirley & McMicken, Preston Shirley, Galveston, for appellees.

BELL, Chief Justice.

This is an appeal from a judgment of the trial court dismission appellants' suit when they refused to amend after the court sustained appellees' special exceptions to appellants' petition purporting to allege a cause of action for abuse of legal process.

As shown by our decision in the case of Wallace Investments, Inc. v. Blackstock et al., 384 S.W.2d 910, when that case was before us on complaint that the trial court incorrectly overruled Wallace Investments, Inc.'s plea of privilege, appellants brought a suit against appellees seeking to determine their riparian rights, to remove cloud from title to their appurtenant lands and to enjoin the filling in of Taylor Lake and other acts that would damage their riparian rights. We held the trial court properly overruled the plea of privilege because the dominant purpose of the suit was to remove cloud from title to appellant's land and suit for injunctive relief was incidental to that purpose. We noted that there was another cause of action for damages asserted which appellants denominated 'abuse of civil process' and it could be maintained (assuming a cause was sufficiently stated) here in order to avoid a multiplicity of suits. We recite this to show that appellants' original suit, which was No. 595,229, was first filed against appellees, and that it is such suit that appellants contend appellees seek to force them to dismiss or abandon through the abuse of civil process in other suits filed against them by appellees.

After our disposition of the plea of privilege appeal, appellants' suit No. 595,229 and all suits filed for appellees against appellants, except one, were consolidated and were carried as Cause No. 595,229. Appellees addressed special execptions to that part of appellants' fifth amended original petition, which appellants denominated their 'Second Count,' which purported to allege a cause of action for abuse of civil process. Upon the sustaining of such exceptions, appellants stated they could not further amend and moved the court to sever this count, it representing a separate cause of action. The count was severed and is now carried as Cause No. 595,229-A on the trial court's docket. Appellants then filed their original petition in the severed Cause No. 595,229-A and the appellees' exceptions to it were sutained and the cause dismissed on refusal of appellants to amend. Consolidated Cause No. 595,229, which includes all of appellees' suits against appellants, except one which was not consolidated, remains undisposed of as does the the other suit of appellees filed against appellants that was not consolidated.

The position of appellants is that they have sufficiently alleged a cause a action for damages for abuse of process. The position of appellees is that appellants have asserted nothing more than a suit for damages for malicious prosecution of civil suits and the petition is even insufficient to state such a cause of action or one for abuse of process.

Appellants' original petition in the severed cause consists of paragraphs numbered I through VII. To each paragraph, except paragraph I, special exceptions going to the substance of the pleading were urged and sustained. Paragraph I, to which no exception was urged, in substance sets out the ownership by appellants of specificially enumerated lots on Taylor Lake, it being alleged they each owned title to the water's edge and had the exclusive and unrestricted right of ingress and egress from the respective lots to the water. They further allege that in May, 1962 the appellees began filling a portion of the lake in front of appellants' property but were restrained by an order of the United States District Court. Thereafter the appellees, Tatum and Wallace Investments, Inc., in pursuance of a common design induced Paul C. Harris, common source of title of all parties, to execute to these two appellees a correction deed to elaborate on a previous deed to Tatum, which correction deed described a strip of land claimed to adjoin appellants' land on the lakeward side, the land described measuring in width up to 88 feet. It is alleged that some of appellants were using and enjoying their property, including the riparian rights, and such was known to appellees. Appellants claim the strip of land and all riparian rights. We should note that the issue of ownership is really not involved here but is involved in the consolidated cause. However, we recite the above portion of paragraph I because it shows appellants, claiming as above set out, filed the Federal Court suit and Cause No. 595,229 in the State Court to establish their ownership of the above strip and the appurtenant rights and that appellants claim that the suits hereinafter mentioned that were filed by appellees were filed and are being prosecuted for the purpose of coercing appellants into dismission Cause No. 595,229.

Paragraph II in substance alleges that about September 1, 1963 appellees determined to force appellants Blackstock, King and Phipps to abandon their suit. They allege the title procured by the correction deed was a spurious one and its acquisition was for the sole purpose of furthering the unlawful conspiracy of appellees. It is alleged that the other appellees conspired, confederated and combined with North Clear Lake Development Corporation to file suit against appellants and others to litigate title to the above strip and this was for the purpose of forcing appellants to abandon their suit. They say the purpose was to 'misuse and abuse the process of the courts.' The cause immediately complained of in paragraph II is No. 627,718 and was filed by North Clear Lake Development Corporation against all of the appellants, their wives and lienholders. It is asserted the suit cannot possibly be filed for a legitimate purpose because ownership of the strip could not benefit appellees since they could not build on the land and had no right of ingress and egress to the land. Appellees' said suit, appellants say, was filed for the evil and fraudulent purpose of threatening appellants with loss of their water frontage, thereby destroying one-half the value of their homes and making them unsalable while the suit is pending. There is no allegation of any contemplated sale. Cause No. 627,718 is one in trespass-to-try title and was filed against appellants and other persons. It alleges ownership of the strip of land as of January 1, 1963. It was filed May 12, 1965.

Paragraph III of appellants' petition alleges that the appellees, not content with the above fraudulent conspiracy to 'abuse and misuse' the process of the courts, through their corporate tool, Bank Line Development Corporation, filed Cause No. 628,593 in the 61st District Court wherein Bank Line sought of appellant Blackstock and four other persons damages because the property owners in El Lago Estates have sought to use funds belonging to them to assist appellants in this suit to defeat the efforts of appellees to destroy the value of the subdivision. We find no further description of Cause No. 628,593, nor do we find a copy of the petition in the transcript.

In Paragraph IV it is alleged that as a part of the conspiracy to browbeat, harass, threaten and punish appellants for filing their suit, appellees filed Cause No. 632,865 in the 152nd District Court, which is alleged to be identical with Cause No. 627,718. The suit complained of in this paragraph is in trespass-to-try title and seeks to establish title in North Clear Lake Development to the strip of land above mentioned. This petition, however, alleges title as of December 2, 1963. It was filed May 12, 1965. It is asserted this cause is an additional flagrant abuse of the process of the court and is a further attempt to accomplish the unlawful aims and objectives entertained and fostered by appellants in Cause No. 627,718.

In Paragraph V it is alleged that appellees, in an effort to intimidate the appellants and cause them to give up Cause No. 595,229, filed Cause No. 632,969, against the appellant Blackstock seeking damages because of alleged actions taken by him that were actually efforts by him to protect his home. This last suit was filed May 12, 1965, and is for damages in the...