Citizens Bldg., Inc. v. Azios
| Decision Date | 11 October 1979 |
| Docket Number | No. 17490,17490 |
| Citation | 590 S.W.2d 569 |
| Parties | CITIZENS BUILDING INC., et al., Appellants, v. E. L. AZIOS, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Newton B. Schwartz, P. C., Houston, for appellants.
Foreman, Dyess, Prewett, Rosenberg & Henderson, Richard O. Faulk, Houston, for appellee.
Citizens Building, Inc., Gloria Acker and Martin R. Nathan appeal from an order of the trial court appointing a receiver for the Citizens Building, Inc.
The main issue on appeal is whether the trial court abused its discretion in appointing a receiver.
James Mitchell and Helen Mitchell, the owners of Citizens Bank Building, leased the premises to a trust sometimes called the Citizens Building Trust. Gloria Acker and E. L. Azios are trustees and beneficiaries under the trust. Citizens Building Trust subleased the building to Citizens Building, Inc., which in turn subleased the building to Harris County. Gloria Acker and Martin R. Nathan each own 25% And E. L. Azios owns the remaining 50% Of the common stock of Citizens Building, Inc. Mrs. Acker, Mr. Azios and Mr. Martin R. Nathan are the directors of the Corporation. Under the lease between the trust and the corporation, the corporation is obligated to pay $7,000 per month as rent and is responsible for the maintenance and housekeeping of the building. The leasehold interest in the building is the sole capital asset of the trust and the corporation.
For some years, the Citizens Bank Building was sparsely occupied and in a state of disrepair. E. L. Azios and others agreed to obtain a lease, repair the premises, and sublease it for a profit. In 1975 a lease was obtained by the Trust.
Before March 1978, E. L. Azios, as president of the corporation and as trustee and beneficiary under the trust, acted as building manager. Thereafter, at a called meeting of the board of directors, Newton Schwartz was appointed building manager. Since that time numerous disputes have arisen between Mr. Azios and Mr. Schwartz regarding the maintenance and operation of the building. In December of 1978, a dispute arose between Mrs. Acker and Mr. Azios regarding alleged payments due by Mr. Azios to the trust for capital improvements made to the building. Most of these disputes were settled, but the hard feelings have lingered.
On March 6, 1979 certain officials of Harris County were notified that future rental payments should be sent to Schwartz instead of Azios.
Because of the dispute as to whom the rental payments were to be delivered, Harris County, pursuant to Section X of its lease, began withholding rental payments to the corporation.
On March 17, 1979, Martin R. Nathan and Gloria Acker, as directors of the corporation, sent a mailgram to E. L. Azios notifying him that a special meeting of the board of directors of the corporation would be held at 6:00 p. m., March 19, 1979, at the office of Mrs. Acker for the purposes of electing new officers, appointing a collection agent, appointing a new bookkeeper-accountant, and to discuss matters pertaining to the Harris County lease. The telegram was posted at 13:56 Eastern Standard Time (12:56 p. m., Central Standard Time). The meeting of the board was held at the appointed time and Martin R. Nathan was elected president of the corporation, the bookkeeper was discharged, a new corporate depository was selected and Newton Schwartz was appointed rental collection agent for the corporation. Mr. Azios was not present. Prior to this meeting Azios was the president of the corporation and collected the rental payments from Harris County.
On March 29, 1979 appellee filed suit pursuant to Section 7.05 of the Business Corporation Act, requesting that a receiver be appointed, alleging that (1) the directors were deadlocked in the management of the corporation and the shareholders were unable to break the deadlock (2) an illegal meeting of the board was held removing appellee as president, and (3) notice had been given to Harris County contesting appellee's right to receive the monthly payment of rentals resulting in a suspension of rental payments by Harris County, all of which could cause a forfeiture of the lease by the corporation.
Appellants claim the order of the trial court was void because:
I. The trial court was disqualified from hearing the cause.
II. The trial court lacked jurisdiction and authority to appoint a receiver because:
A. There was an absence of necessary parties
B. There was no main suit pending between the parties
C. The proceeding was not ancillary to any other suit or pending cause of action D. Both parties are claiming exclusive title and possession to the res involved
E. Appellee had other adequate remedies at law and equity to pursue his claims
F. There was no evidence or, alternatively, there was insufficient evidence upon which to grant appointment of a receiver
G. There were no findings that a receiver for specific assets was insufficient or was inadequate relief and no other findings and conclusions
H. No conditions were made for termination of the receivership
I. Appellee having failed to do equity, lacked "clean hands."
In point of error 1 appellants claim the trial judge was disqualified because he had previously disqualified himself in a previous suit involving the corporation, because appellee's brother is a member of the Harris County Judiciary, and because the judge was acquainted with appellee and a witness for appellee. Even if proved, none of the reasons was sufficient to disqualify a judge under Art. 5, Section 11 of The Texas Constitution, which provides "No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such degree as may be prescribed by law." Art. 200a, section 6 provides in part:
"A district judge shall request the Presiding Judge to assign a judge of the Administrative District to hear any motions to recuse such district judge from a case pending in his court."
Appellant did not present a motion to recuse to the trial court nor to the presiding judge of the Administrative District. There being no allegation of a matter which would disqualify a judge "for cause" and no motion to recuse filed, this point is overruled.
Appellants allege that since a receiver was appointed before the trial was completed, the judgment should be reversed because the court prejudged the case. There is no evidence in the record to support this allegation.
Appellants point of error II contains nine points of error. An assignment of error is multifarious if it embraces more than one specific ground of error, or if it attacks several and distinct separate rulings of the court. A court of civil appeals may disregard an assignment of error that is multifarious. However, multifarious points will be...
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