Fed. Deposit Ins. Corp. v. White
| Decision Date | 20 October 2011 |
| Docket Number | NUMBER 13-08-00263-CV |
| Parties | FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR WASHINGTON MUTUAL BANK, Appellant, v. DAVID MARION WHITE, Appellee. |
| Court | Texas Court of Appeals |
On appeal from County Court at Law No. 1
of Dallas County, Texas
MEMORANDUM OPINIONBefore Justices Benavides, Vela and Perkes
The Federal Deposit Insurance Corporation, as receiver for Washington Mutual Bank ("Washington Mutual"), appellant, appeals an adverse judgment for breach ofcontract entered in favor of David Marion White, appellee. Washington Mutual also appeals the trial court's sua sponte order of dismissal for lack of jurisdiction of its abuse of process counterclaim. We affirm the judgment of the trial court, in part, and reverse and remand, in part.
In 1997, White purchased his home at 7605 Lakecrest Circle, Irving, Texas, obtaining a purchase money mortgage, which eventually was purchased by Washington Mutual. Beginning in 2000, White fell in arrears on his mortgage note, and thereafter never caught up with his arrearages. Foreclosure proceedings2 began in October 2000. However, in accordance with parties' settlement agreement,3 they were not completed until October 5, 2004. The settlement agreement states, in relevant part:
White further agrees to leave the house at 7605 Lakecrest, Irving, Texas by not later than October 25, 2004. White has already executed documents to permit the issuance of a writ of execution on that date if he has not left the premises of 7605 Lakecrest as part of this settlement agreement.
On October 12, 2004, White returned to the home, and saw that his property had been moved around in the house, and that items were missing. White encountered Coldwell Banker's agent Ray Jones taking pictures of White's property. Jones informedWhite that Fannie Mae had taken possession of the home and that he was getting it ready for re-sale. He also informed White that he had re-keyed the locks, and that he did not have permission to give White a key at that time. Jones told him that he would check with his supervisors about giving him access to the home so that White could retrieve his belongings.4
After that encounter, White twice attempted to reach Jones about obtaining access to the home. On October 26, 2004, Jones finally returned White's call and informed him that he could pick up a key to the house. When White went to obtain the key at Jones' office, Jones agreed to allow White to have the key until October 29, 2004. On the morning of October 29, White went to the house to begin moving his property. Upon arrival, he saw a Constable's notice posted on the door, stating that White was to appear in the Justice of the Peace Court on November 4, 2004, to answer to the forcible entry and detainer of the home. This notice led White to believe he had until November 4 to move out of the premises.
On November 1, 2004, White returned to move his property out of the home. Upon arrival, White saw some of his property sitting in the driveway. He then realized that his property had been set out sometime on Friday, October 29, 2004, as a result of the agreed writ of execution. By the time he arrived, a great portion of his property was already missing.
White sued Washington Mutual and Coldwell Banker, claiming breach of contract, conversion, invasion of privacy, contort (breach of tort duty), negligence, grossnegligence, and common law fraud. White claimed Washington Mutual breached the settlement agreement by barring access to the house prior to October 25, 2004, which was the date he agreed to vacate the home pursuant to the settlement agreement.
Washington Mutual brought a counterclaim against White alleging abuse of process. Washington Mutual asserted that White's pursuance of several bankruptcies and state court proceedings unreasonably delayed the foreclosure. Washington Mutual also asserted the affirmative defense of set-off. The trial court sua sponte entered an order dismissing Washington Mutual's abuse of process counterclaim for lack of jurisdiction. The order, however, does not mention the affirmative defense of set-off being asserted by Washington Mutual.
The jury found that Washington Mutual and White agreed Washington Mutual would allow, and Washington Mutual had the obligation to permit, White the right to go in and out of the premises, and that he would leave the house no later than October 25, 2004. Although the jury found that both Washington Mutual and White failed to comply with the agreement, they further found Washington failed to comply first, and awarded White $100 for sentimental value. The jury also found that Washington Mutual had an obligation to inform Coldwell Banker that White had a right to go in and out of the premises, and was to leave the house by no later than October 25, 2004. The jury found that Washington Mutual Mutual failed to perform its duty, and awarded White $5,000 for market value, and $1,250 for sentimental value.5 The jury found that areasonable attorney's fee would be the sum of $25,000 for preparation and trial. Based upon the jury's verdict, the trial court entered judgment against Washington Mutual in the sum of $100 for actual damages and $25,000 for attorney's fees.
By five issues, Washington Mutual argues that: (1) the trial court erred by dismissing Washington Mutual's counterclaim and set off against White, sua sponte, on jurisdictional grounds; (2) the trial court erred by allowing the jury to return a verdict for damages caused by the lawful execution of an agreed writ of possession; (3) the trial court erred by failing to dismiss the judgment against Washington Mutual after Coldwell Banker paid the judgment in full; (4) the trial court erred by allowing the jury to award damages for breach of obligations which did not appear in a contract which contained a merger clause; and (5) the trial court showed bias against Washington Mutual and its counsel and should not be permitted to preside at any retrial.
In its first issue, Washington Mutual argues that the trial court erred by dismissing, sua sponte, on jurisdictional grounds, Washington Mutual's counterclaim and set off against White. Washington Mutual filed a counterclaim against White for abuse of process and an affirmative defense of set-off, alleging that White's abusive bankruptcy and state court litigation resulted in a four-year delay in foreclosure, thereby causing financial damages.6
Whether a court has subject-matter jurisdiction is a question of law, subject to de novo review. Graber v. Fuqua, 279 S.W.3d 608, 631 (Tex. 2009); Tex. Dept of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144 (1999). When reviewing a trial court order dismissing a cause for want of jurisdiction, Texas appellate courts construe the pleadings in the plaintiff's favor and look to the pleader's intent. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Cont'l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 404 (Tex.2000). The court must presume in favor of the jurisdiction unless lack of jurisdiction affirmatively appears on the face of the petition. Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804-05 (Tex. 1989); Smith v. Texas Improvement Co., 570 S.W.2d 90, 92 (Tex. Civ. App.—Dallas 1978, no writ). Subject-matter jurisdiction is fundamental and may be raised for the first time on appeal. Tex. Assoc. of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). If a claim is not within a court's jurisdiction, and the impediment to jurisdiction cannot be removed, then it must be dismissed. Am. Motorists, Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001).
Washington Mutual relies on Fuqua v. Graber for its position that federal bankruptcy law does not preempt the trial court from hearing its claim for abuse of process. See Fuqua v. Graber, 158 S.W.3d 635, 639 (Tex. App. —Corpus Christi 2005) aff'd, 279 S.W.3d 608 (Tex. 2009). Federal preemption of state law causes of action isappropriate if Congress expressly legislates such preemption or if Congressional intent can be implied from the federal legislation. See English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990). If Congress has legislated comprehensively and occupied an entire field of regulation, leaving no room for supplemental state regulation, preemption is implied. See id. at 79; see also Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 (2000). State law is also preempted to the extent it actually conflicts with federal law or interferes with the accomplishment and execution of Congressional objectives. Fuqua, 158 S.W.3d at 639.
Although Congress has given the federal district courts original and exclusive jurisdiction of all cases under the Bankruptcy Code, Title 11 of the United States Code, the district courts do not have exclusive jurisdiction of all civil proceedings arising under Title 11 or arising in or related to cases under Title 11 (emphasis added). See 28 U.S.C.A. §§ 1334(a), (b) (West 2004); see also In re Brady, Mun. Gas Corp. v. City of Brady, 936 F.2d 212, 218 (5th Cir. 1991); In re Epstein, 315 B.R. 591, 598-88 (Bankr. S.D. Tex 2004). Thus, the district courts and their bankruptcy units have exclusive jurisdiction only over the bankruptcy petition itself. See In re Wood, 825 F.2d 90, 92 (5th Cir. 1987). In other matters "arising in" or "related to" Title 11 cases, unless the bankruptcy code provides otherwise, state courts have concurrent jurisdiction. See In re Brady, 936 F.2d at 218; In re Epstein, 314 B.R. 591 at 599-600.
In its counterclaim, Washington Mutual complains that White abused bankruptcy court and state court process, most notably automatic bankruptcy stays and state court...
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