First Nat. Bank of Grapevine v. Nu-Way Transports, Inc.

• Citation: 585 S.W.2d 813
• Decision Date: 28 June 1979
• Docket Number: No. 18121,NU-WAY,18121
• Parties: FIRST NATIONAL BANK OF GRAPEVINE, Texas, Appellant, v.TRANSPORTS, INC., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 813

585 S.W.2d 813

FIRST NATIONAL BANK OF GRAPEVINE, Texas, Appellant, v. NU-WAY TRANSPORTS, INC., Appellee.

No. 18121.

Court of Civil Appeals of Texas, Fort Worth.

June 28, 1979.

Rehearing Denied Aug. 2, 1979.

Second Motion for Rehearing Overruled Sept. 13, 1979.

Barlow, Gardner, Tucker & Garsek, and James B. Barlow, Fort Worth, for appellant.

Wilbur T. Knape, Hurst, for appellee.

OPINION

SPURLOCK, Justice.

A bank appeals a judgment against it based on a jury verdict. The bank was found to have converted assets held by it in a corporation's checking account and also to have unreasonably informed a judgment creditor that the corporation was jointly operated with a judgment debtor resulting in the corporation being involved in garnishment actions and being damaged thereby. The question is whether the corporation's recovery is barred by the two year statute of limitation.

We reverse and render.

On February 29, 1964, R. Otis LaGrone and wife obtained a judgment against G. W. Smith in a wrongful death action. G. W. Smith operated trucks and one of his trucks was involved in the accident which precipitated the suit and judgment. G. W. Smith's son, Kenneth Smith, is the president of Nu-Way Transports, Inc. Nu-Way is engaged in the trucking business but is not connected with the trucking operations of G. W. Smith. However, both Nu-Way and G. W. Smith have accounts at the First National Bank of Grapevine.

To enforce the judgment against G. W. Smith, the LaGrones caused a writ of garnishment to be issued against the bank on October 29, 1965, in cause number 10,007. Nu-Way was neither mentioned in the LaGrones' application for the writ nor named as a judgment-debtor or otherwise in the writ of garnishment. Even though Nu-Way was not involved, the bank impounded Nu-Way's funds. Nu-Way alleged and the jury found that this was a conversion of Nu-Way's funds by the bank on October 29, 1965. The bank was apparently of the opinion that G. W. Smith and Kenneth Smith were operating Nu-Way Transports jointly.

Nu-Way also alleged that the bank maliciously advised the LaGrones that G. W. and Kenneth Smith were operating Nu-Way jointly and that the bank continued to attempt to implicate Nu-Way in the enforcement of the LaGrones' judgment resulting in the issuance of two other writs of garnishment against debtors of Nu-Way. One of these writs was issued against Wesco-Wamix, Inc. on December 18, 1965 in cause number 10,037. The other writ was issued against Lone Star Cement Corporation on April 23, 1970 in cause number 10,926. The jury found that the bank advised the LaGrones that Nu-Way was being operated jointly with G. W. Smith; that this advice was unreasonable; and that such action was a proximate cause of damage to Nu-Way.

Nu-Way first filed suit against the bank on October 27, 1967. Although its pleadings in the 1967 suit are not in the record, we presume two causes of action were alleged, conversion on October 29, 1965 and tortious conduct in advising the LaGrones that G. W. Smith and Nu-Way were operating jointly resulting in the writ of garnishment against Wesco-Wamix, Inc. on December 18, 1965. Nu-Way alleges that the bank filed a plea in abatement seeking to abate the action until the LaGrones' garnishment against the bank was litigated. However, no such plea appears in the record. It appears, although not in the record, that Nu-Way's suit was dismissed for want of prosecution on June 24, 1969. Nu-Way filed the suit upon which this appeal is based on October 22, 1971.

The bank filed a plea of limitation in this action which was carried along by the trial court. The bank again asserted limitation in a motion for judgment n. o. v. The trial court overruled the bank's motion. On appeal the bank claims that all acts complained of occurred on or about October 29, 1965. It therefore concludes that Nu-Way's action, filed in 1971, is barred by either the two or four year statute of limitation. Thus we are directed to review Nu-Way's allegations to determine when the causes of action arose and when the applicable statute of limitation began to run.

Nu-Way alleged that the bank converted its funds by wrongfully impounding them on October 29, 1965. The two year statute of limitation governs actions for conversion. A cause of action for conversion usually accrues when the act of conversion is complete. 14 Tex.Jur.2d Conversion § 76 at 64-65 (1960). Thus we hold that the two year statute of limitation began to run on October 29, 1965. Nu-Way filed its first suit on October 27, 1967, two days before it would have been barred by the two year statute. Nu-Way claims that the plea in abatement sought to have that suit abated until the garnishment action against the bank in cause number 10,007 was litigated to a final judgment. No such plea appears in the record and therefore cannot affect the decision in this case. However, even if the bank did file such a plea seeking to have the suit abated until the garnishment action in cause number 10,007 was finally litigated and Nu-Way is correct in its allegation that this estops the bank from asserting limitation, this would still not afford Nu-Way any relief. We note that Nu-Way's first action for conversion was filed on October 27, 1967, two days before it would have been barred. The record reflects that a final judgment was rendered in the garnishment action in cause number 10,007 on April 29, 1971. Thus, assuming again the bank was estopped from asserting limitation during the pendency of the garnishment action,...