Continental Oil Co. v. Lesher

• Decision Date: 06 September 1973
• Docket Number: No. 16243,16243
• Citation: 500 S.W.2d 183
• Parties: CONTINENTAL OIL COMPANY, Relator, v. Honorable Arthur C. LESHER, Jr., Judge, et al., Respondents. (1st Dist.)
• Court: Texas Court of Appeals

Page 183

500 S.W.2d 183

CONTINENTAL OIL COMPANY, Relator, v. Honorable Arthur C. LESHER, Jr., Judge, et al., Respondents.

No. 16243.

Court of Civil Appeals of Texas Houston (1st Dist.).

Sept. 6, 1973.

Vinson, Elkins, Searls, Connally & Smith, John C. Snodgrass, Harry M. Reasoner, Travis C. Broesche, John E. Kennedy, Houston, Liskow & Lewis, Austin W. Lewis, Gene W. Lafitte, James B. St. John, Jr., New Orleans, La., for relator; Gus M. Hodges, Austin, Keith W. Blinn, John M. Berlinger, Joseph C. Johnson, Houston, Van E. Langley, Stamford, Conn., of counsel.

Andrews, Kurth, Campbell & Jones, Raymond A. Cook, V. Camp Cuthrell, Thomas L. Schubert, Houston, Stockwell, St. Dizier, Sievcert & Viccellio, Lake Charles, La., for respondents; David A. Cort, Richard C. Packard, Pittsburgh, Pa., of counsel.

COLEMAN, Chief Justice.

Continental Oil Company, as Relator, seeks a writ of mandamus to compel the Honorable Arthur Lesher, District Judge, to set the amount of a supersedeas bond, pursuant to Rule 364(e), Texas Rules of Civil Procedure, so that Continental may supersede the judgment of dismissal without prejudice rendered in the case of Continental Oil Company v. P.P.G. Industries, Cause No. 907,308--A in the 157th Judicial District Court of Harris County, Texas. Relator's appeal in said cause has been perfected to this court.

Cause No. 907,308--A is a suit in which Continental asks a declaration of its contractual obligations under its contract to supply a substantial portion of P.P.G.'s natural gas requirements at its chemical plant located near Lake Charles, La. and also seeks an equitable decree allocating its available supplies of natural gas. Subsequent to the filing of this suit P.P.G. filed suits against Continental based on the contract in the United States District Court in Lake Charles, La., and in a Louisiana state court. On application of Continental the trial court issued an order temporarily enjoining P.P.G. from prosecuting its action in the Louisiana state court. This order was upheld by this court in P.P.G . Industries, Inc. v. Continental Oil Company, 492 S.W.2d 297 (Tex.Civ.App.--Houston (1st Dist.) 1973, writ ref'd, n.r.e.). The action filed in the United States District Court was stayed by order of that court.

Subsequently P.P.B. filed a plea in abatement in this case requesting that this action be dismissed or stayed on the ground that the action could be adjudicated more effectively and conveniently by the Louisiana courts. On July 6, 1973, the trial court entered an order staying the proceedings in this case. In the order the court 'finds and concludes' that '. . . because of the nature of the controversy and the facts out of which it has arisen all matters in controversy between the plaintiff and the defendant can be adjudicated in either of such Louisiana actions more effectively and conveniently than in this action and, accordingly, that the dispute should be litigated in the Louisiana action; . . .'

The court ordered:

'1. The plea in abatement of the defendant is hereby granted, and except as hereinafter provided, all further proceedings in this action are hereby stayed.

'2. This order is without prejudice to the right of the plaintiff to move to rescind the stay in the event that defendant prosecutes neither of the aforementioned Louisiana actions in good faith; and this court retains jurisdiction of this action to protect such right of the plaintiff.'

Thereafter on the same date the court entered its order of dismissal reciting:

'. . . the court having heretofore entered its order staying the action, and the court recognizing that such order was interlocutory in nature and therefore not appealable by plaintiff through ordinary processes of appeal, the court accordingly further finds that it is in the interest of justice that a final order be entered which will enable the plaintiff to obtain prompt review of the actions taken by this court;

'It is, therefore, Ordered that the plaintiff's suit be and the same is hereby dismissed without prejudice.'

Continental gave notice of appeal and moved the trial court to fix the amount of the supersedeas bond in accordance with Rule 364(e), T .R.C.P. The trial court denied this motion.

It is well established that all final judgments, unless otherwise provided by statute, may be superseded, pending appeal, by the filing of a proper supersedeas bond. Ex Parte Kimbrough, 135 Tex. 624, 146 S.W.2d 371 (1941). The right to supersedeas is not limited to judgments which require a writ of execution or other process to enforce them, but also extends to judgments which are self executing . Houtchens v. Mercer, 119 Tex. 431, 29 S.W.2d 1031, 1037 (1930). The trial judge's discretion...