Block Distributing Co. v. Rutledge, 15079
| Decision Date | 06 December 1972 |
| Docket Number | No. 15079,15079 |
| Citation | 488 S.W.2d 479 |
| Parties | BLOCK DISTRIBUTING COMPANY et al., Appellants, v. Jerry F. RUTLEDGE, d/b/a Capitol Beverage Company, Appellee. |
| Court | Texas Court of Appeals |
Crawford C. Martin, Atty. Gen., of Texas, Nola White, Alfred Walker, Robert C. Flowers, Jay Floyd, Asst. Attys. Gen., Clark, Thomas, Harris, Denius & Winters, Edward Clark, Donald S. Thomas, Mary Joe Carroll, Austin, for appellants.
Nicholas & Barrera, Dan A. Naranjo, San Antonio, for appellee.
This is an appeal by Block Distributing Company and other holders of Wholesaler's Permits issued under the provisions of the Texas Liquor Control Act, Tex.Ann. Penal Code, Article 666--15, Subdivision (6), and by Crawford C. Martin, Attorney General of the State of Texas, from a summary judgment rendered by a district court of Bexar County declaring unconstitutional Article 666--51 1/2, Subdivision A(9)(b), which makes it unlawful for the holder of a Nonresident Seller's Permit to solicit, accept, or fill any order for any distilled spirits or wine unless the permit holder is '. . . the primary American source of supply for the brand of distilled spirits or wine sold or sought to be sold.'
At the outset, appellants here contend that the trial court should have dismissed the suit of appellee, Jerry F. Rutledge, d/b/a Capitol Beverage Company, plaintiff below, because there is no justiciable controversy between such plaintiff and the defendant against whom this suit was originally filed, Major Brands of Texas, Inc. Plaintiff's brief in this Court contains no response to these points, nor does he challenge any of the statements contained in the briefs of appellants relating to this question. See Rule 419, Texas Rules of Civil Procedure.
In his petition, naming Major Brands as the sole defendant, plaintiff, a resident of the State of Oklahoma and holder of a Nonresident Seller's Permit issued under the provisions of the Liquor Control Act, alleged that on June 2, 1971, plaintiff and defendant entered into a written contract binding plaintiff to sell to defendant, and defendant to buy from plaintiff, specified amounts of various types of distilled spirits and wines. Plaintiff is not the 'primary American source of supply' for any of the brands of distilled spirits or wines specified in the contract. Plaintiff alleged that because of the provisions of Article 666--15 1/2, Subdivision A(9)(b), he could not perform his contractual obligation to sell whiskey and wine to defendant, and sought a declaration that such legislation is unconstitutional.
Within 27 minutes after plaintiff filed his petition, defendant sought and obtained permission to file a cross-action against the Texas Alcoholic Beverage Commission (the State agency whose function it is to administer the Liquor Control Act), and filed its answer to plaintiff's petition and its cross-action against the Commission. In answer to plaintiff's petition, defendant merely entered an appearance and prayed that the court enter the judgment it deemed proper. Defendant's cross-action against the Commission, for all practical purposes, parroted plaintiff's original petition and asked for judgment declaring the statutory provision involved here unconstitutional for the same reasons alleged in plaintiff's petition.
About four weeks later, on July 26, 1971, plaintiff filed a motion for summary judgment, supported by the affidavit of defendant's vice-president. On the same day, after having obtained leave of court to do so, defendant dismissed its cross-action against the Alcoholic Beverages Commission.
The Attorney General entered the suit under the provisions of the Declaratory Judgment Act, Article 2524--1, § 11, Tex.Rev.Civ.Stat.Ann., since the constitutionality of a state statute was being challenged. The Attorney General filed a motion to dismiss plaintiff's suit, on the ground that the pleadings of plaintiff and defendant showed that there was no justiciable controversy between them. This motion was granted, but the trial court granted Defendant's motion for leave for Plaintiff and defendant to amend their pleadings.
Five days later, on August 18, 1971, plaintiff filed his first amended original...
To continue reading
Request your trial
-
Property Owners Who Care-South Padre Island v. Laguna Madre Enhancement Group, L.P., No. 13-08-641-CV (Tex. App. 8/6/2009), 13-08-641-CV.
...controversy between Laguna Madre and the County. A similar factual scenario arose in Block Distributing Company v. Rutledge. See 488 S.W.2d 479 (Tex. Civ. App.-San Antonio 1972, no writ). In Block, the plaintiff sought a declaratory judgment against a defendant in a case where there was no ......