Finlan v. Peavy

• Decision Date: 30 August 2006
• Docket Number: No. 10-04-00095-CV.,10-04-00095-CV.
• Citation: 205 S.W.3d 647
• Parties: Richard E. FINLAN and David L. Venable, Appellant v. Dan PEAVY and Ed Grant, Appellee.
• Court: Texas Court of Appeals

205 S.W.3d 647

Richard E. FINLAN and David L. Venable, Appellant v. Dan PEAVY and Ed Grant, Appellee.

No. 10-04-00095-CV.

Court of Appeals of Texas, Waco.

August 30, 2006.

COPYRIGHT MATERIAL OMITTED

Ronald D. Hinds, Reyna, Hinds & Crandall, Dallas, for Appellant/Relator.

Dan Peavy, Richardson, pro se.

Ed Grant, Dallas, pro se.

Before Chief Justice GRAY, Justice VANCE, and Judge MORRIS.^*

OPINION

RICK MORRIS, Judge.

BACKGROUND

The history of this case dates back to litigation that began in 1991 between Appellants Richard E. Finlan and David L. Venable and the Dallas Independent School District, the DISD superintendent and trustees (DISD Defendants), and the DISD attorneys (Lawyer Defendants). Appellees Dan Peavy and Ed Grant are two former DISD trustees. Finlan and Venable have been involved in extensive litigation against the above defendants involving numerous lawsuits over a period of years.

In each of the cases or counterclaims filed by Finlan and Venable in various courts against various defendants named above, including Peavy and Grant, they have alleged essentially identical Section 1983 (42 U.S.C.A. § 1983) civil rights claims as they now allege in this suit against Peavy and Grant. Each of the following cases found no constitutional violations and therefore, no Section 1983 liability: (1) Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220 (Tex.App.-Dallas 2000, pet. denied), cert. denied, 534 U.S. 949, 122 S.Ct. 342, 151 L.Ed.2d 258 (2001); (2) Hinds v. Dallas Indep. Sch. Dist., 188 F.Supp.2d 664 (N.D.Tex.2002); (3) Venable v. Keever, 61 F.Supp.2d 552 (N.D.Tex. 1999) and subsequent opinion at 2000 WL 1281206, 2000 U.S. Dist. LEXIS 13112, 2000 WL 1281206 (N.D.Tex.2000); and (4) Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395 (Tex.App.-Eastland 2002, pet. denied).

The events of this lawsuit began in 1994 with Finlan and Venable filing suit against Grant, Peavy, DISD, DISD defendants, and Lawyer Defendants for civil rights violations under Section 1983. That suit was filed in the 162nd District Court of Dallas County, Texas. The suit was later consolidated in the 101st District Court of Dallas County with a previous counterclaim filed by Finlan and Venable which had been transferred from the 192nd District Court of Dallas County, to the 14th District Court of Dallas County, and then to the 101st District Court. See Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395, 401-03 (Tex.App.-Eastland 2002, pet. denied).¹ All of the defendants in the 101st District Court, except Peavy and Grant, were granted summary judgment on the merits of Finlan and Venable's claims. An agreed judgment had been entered earlier in favor of Finlan for $300,000 against Grant. The 101st District Court then severed Finlan and Venable's claims against Grant and Peavy and entered its final judgment in favor of all other defendants.

Finlan and Venable "filed" their severed claims against Grant and Peavy in McLennan County rather than filing it in Dallas County where the case from which it was severed was pending. Finlan and Venable filed a motion for summary judgment. According to the Final Judgment, a summary judgment hearing took place and the trial court requested "... that the plaintiffs [sic] attorney in this matter brief whether or not this Court had jurisdiction over the cause and respond to the Court with a trial brief." Receiving no brief as requested, two years and ten months later, the trial court dismissed the suit without prejudice. Finlan and Venable each filed a motion to reinstate and for new trial, and both motions were overruled by operation of law. The underlying suit had been on file for three years and nine months, and the only activity reflected by the record was the Motion for Summary Judgment filed two years and ten months before the final judgment and an Objection to Court's Motion for Dismissal, filed nearly two years before the final judgment.

DISMISSAL

In Finlan's and Venable's first issue, they contend that it was error for the trial court to dismiss their case on its own motion because of improper venue. The trial court made certain findings in the final judgment dismissing the case below. Findings recited in a judgment, however, do not establish an issue on appeal. Foster v. Centrex Capital Corp., 80 S.W.3d 140, 144 (Tex.App.-Austin 2002, pet. denied). The Texas Rules of Civil Procedure mandate that findings of fact be separately filed and not recited in a judgment. See TEX.R. CIV. P. 299a; Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex.App.-Houston [1st Dist.] 1998, pet. dism'd) (findings of fact and conclusions of law recited in the judgment cannot form the basis of a claim on appeal).

A trial court has broad discretion in determining whether to dismiss a lawsuit. See e.g., Trevino v. Houston Orthopedic Center, 831 S.W.2d 341, 343 (Tex. App.-Houston [14th Dist.] 1992, writ denied). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996). For the following reasons, we find that the trial court did not abuse its discretion in dismissing the case.

Severance and Filing

By separate order on June 7, 2000, the trial court in the 101st Judicial District Court of Dallas County severed Finlan's and Venable's claims against Grant and Peavy from the parent suit. On June 19, 2000, the 101st District Court entered its final judgment in favor of all other defendants in the parent suit. Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395, 396 (Tex. App.-Eastland 2002, pet. denied). The severed claims against Grant and Peavy were filed by Finlan and Venable in McLennan County on June 14, 2000.

An order granting a severance is effective when signed and becomes effective without the district clerk's creation of a separate physical file with a different cause number. Furthermore, the severance order is effective immediately whether or not the clerk ever creates a physically separate file or assigns a new number to it. McRoberts v. Ryals, 863 S.W.2d 450, 453 (Tex.1993).

Finlan and Venable are of the opinion that the severed suit in the 101st District Court of Dallas County, which was subsequently refiled in McLennan County, was a new cause of action and subject to new filing procedures. See n. 3 of Appellant's Brief ("Such a filing [filing of the 101st District Court suit in McLennan County] requires a new cause number and is treated as a new case. Appellants know of no requirement by rule or statute that this new action be filed in the same venue from which it was severed."). Appellant's opinions as to the effect of a severed cause are incorrect.

Dominant Jurisdiction

Rule 41, Texas Rules of Civil Procedure, provides for severance and the docketing of the severed matter as a separate suit. See TEX.R.CIV. P. 41. Such action does not have the effect of a dismissal of any part of the cause of action against any of the parties. Their rights and privileges are not thereby enlarged or impaired, but remain the same as they were at the time of severance. It does not constitute a new and independent suit. Harris v. Moore, 740 S.W.2d 14, 15 (Tex. App.-El Paso 1987, no writ). It is well settled that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other courts. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974); V.D. Anderson Co. v. Young, 128 Tex. 631, 636, 101 S.W.2d 798, 800 (1937). Even though the cause is severed, the res controversa remains pending in the court of dominant jurisdiction, the parent suit. This would be to the exclusion of all other coordinate courts. Harris, 740 S.W.2d at 15. Here, the 101st District Court of Dallas County is the court of dominant jurisdiction, to the exclusion of all other courts, even courts of concurrent jurisdiction. If the order of severance did not result in a final judgment in the severed action, that action is still pending. Tanner v. Karnavas, 86 S.W.3d 737, 744 n. 4 (Tex.App.-Dallas 2002, pet. denied); see Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795 (Tex.2001). There is nothing in the record to indicate that the severed action in the 101st District Court of Dallas County has been dismissed, discontinued, or otherwise terminated. Thus, the severed cause of action remains pending in the 101st District Court of Dallas County.

And if an action pending in one court is filed in a second court, generally, the second court must dismiss a subsequent suit involving the same parties and subject matter. Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court's attention to the pendency of a prior suit. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). A plea in abatement is a proper vehicle to assert dominant jurisdiction. Tovias v. Wildwood Properties Partnership, L.P., 67 S.W.3d 527, 529 (Tex.App.-Houston [1st Dist.] 2002, no pet.). But see Miles v. Ford Motor Co., 914 S.W.2d 135, 139 (Tex.1995). The plea in abatement, however, must be raised in a timely manner, or it is waived. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). In the case below, a plea in abatement was not filed. But Finlan and Venable, in their pleadings and in their Motion for Summary Judgment, specifically directed the trial court's attention to the court of dominant jurisdiction, the 101st District Court of Dallas County. The trial court apparently acknowledged the dominant jurisdiction issue by requesting briefs on the issue of jurisdiction.

The trial court, in the exercise of its sound discretion, may dismiss an action for reasons of comity, convenience, and orderly procedure, and in the exercise of that discretion may look to the practical results to be obtained, dictated by a consideration of the inherent interrelation of the subject matter of the two suits. Weil v. Damson Oil Corp., 1...