First State Bank of Bishop, Tex. v. Norris, 1410
| Decision Date | 23 December 1980 |
| Docket Number | No. 1410,1410 |
| Citation | 611 S.W.2d 680 |
| Parties | FIRST STATE BANK OF BISHOP, TEXAS v. Robert W. NORRIS et al. |
| Court | Texas Court of Appeals |
Ray Guy, Jenkens & Gilchrist, Dallas, Jim Vollers, Davis Grant, Austin, for appellant.
Lev Hunt, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellees.
This is an appeal from an order of the trial court sustaining a plea in abatement and dismissing the case.
The previous events which led to the present suit are lengthy and somewhat involved. In December, 1970, First State Bank of Bishop, Texas (Bank), plaintiff below and appellant here, employed James C. Watson (Watson) an attorney, member of the firm of Keys, Russell, Watson and Seaman, of Corpus Christi, to act as trial counsel and work with William F. Wallace, Jr., (Wallace), Bank's general counsel, for the prosecution of anticipated litigation against H & G Construction Co., et al. From time to time Bank delivered to Watson various files, papers and other documents necessary to prepare for trial, and authorized him to prepare and file certain pleadings, take depositions and perform other related services for Bank. The litigation ultimately evolved into an action on a fidelity bond against Maryland American General Insurance Co. (MAGIC). Two cases, causes 108,227-A and 115,108-C, were filed in the 28th District Court and in the 117th District Court, respectively, both in Nueces County. Watson agreed to represent Bank on a contingent fee basis, and he provided legal services in the MAGIC litigation until his death in December, 1972.
After Watson's death Bank employed, on a contingent fee basis, Hawthorne Phillips (Phillips), who later became a partner in the Austin law firm of Phillips & Norris. Phillips served as lead trial counsel, and he requested the Keys firm to serve as local counsel in Corpus Christi at Wallace's request. Phillips, working with Wallace, acquired files, papers and other documents, prepared and filed pleadings, took depositions and performed other services. A short time prior to the anticipated trial of the MAGIC case Phillips died in 1975.
Several months later Wallace, on behalf of Bank, requested of Norris, who was Phillips' partner, that the files and records be turned over to Bank or an Austin bank for safekeeping until new lead counsel was employed. Wallace consulted with Keys who advised Wallace that the files would not be turned over until the payment of a fee of $38,000 was made to the Keys firm. 1
Bank alleges in its pleading that although repeated requests and demands for the delivery of its files, papers, pleadings, depositions and other documents related to MAGIC litigation were made, defendant Keys and Norris, et al., acting in concert, have filed and refused to deliver such records and files to Bank, have wrongfully withheld them and wrongfully deprived Bank of their use, value and benefit while asserting an alleged attorney's lien against such property. Bank asks for nominal damages, attorney's fees and expenses, court costs, costs and damages resulting from Bank's inability to prosecute the MAGIC litigation, mental anguish and exemplary damages.
The instant suit by Bank was filed May 18, 1978, against Robert W. Norris, individually; Phillips & Norris, a Partnership; Phillips & Norris, Inc.; Keys, Russell, Watson & Seaman, a Partnership; Keys, Russell, Seaman & Mansker, a Partnership; Louis W. Russell, Individually; and William H. Keys, Individually.
Defendants (appellees here) Robert W. Norris, individually, Phillips & Norris, a Partnership, and Phillips & Norris, Inc., filed a plea in abatement alleging that on October 28, 1976, Cause No. 76-4056-A was filed in the 28th District Court of Nueces County (Nueces County case), styled Phillips & Norris, Inc., a Professional Corporation, and Keys, Russell, Seaman & Mansker, a Partnership, plaintiffs, versus First State Bank of Bishop, Texas, defendant, and that such cause was there pending when the instant case was filed. They alleged that the matters set out in the Bank's pleading here were the same matters as were already at issue in the Nueces County case, and that such matters plead in the instant cause were a compulsory counterclaim in the Nueces County case. They further alleged that the court in Nueces County had acquired jurisdiction of the parties, the subject matter and the issues involved in the instant case, and had ruled on some issues, including Bank's motion for summary judgment.
The prayer of appellees in their plea in abatement was (1) to sustain their plea in abatement, (2) to enter an order that plaintiff shall not be permitted to go forward with this cause, and (3) that if plaintiff desires to assert the matters plead in its original petition it must do so in the Nueces County case. In the alternative appellees prayed that the case be transferred to the 28th District Court of Nueces County.
The Nueces County case against the Bank was for attorney's fees for legal services in representing Bank in the two suits in Nueces County, causes nos. 108,227-A and 115,108-C, and the pleadings prayed for $46,000 in attorney's fees for the plaintiffs plus $15,333 for attorney's fees for the attorneys who brought the suit for them.
The Bank answered that suit by plea in abatement alleging that the suit was premature so far as determining a reasonable fee when there was a contingent fee contract, and, in addition, asked the court to order counsel to turn over to Bank the files, records and papers that they had accumulated as prior counsel. The prayer was to abate the suit until the collateral cases were disposed of, and that the appropriate court could then apportion any attorney's fees among counsel entitled to receive them.
The trial court made the following findings of fact: (1) On October 26, 1976, the Keys firm and the Phillips firm filed suit against the Bank (Nueces County case), and such suit is still pending on the docket of that court; (2) that the Bank filed this cause, No. 274,835 in the 53rd District Court of Travis County, on May 18, 1978, which filing was after the Nueces County case and at a time when the Nueces County case was still pending; (3) the real parties in interest, the subject matter, and the issues involved in this case are the same as the real parties in interest, the subject matter and the issues involved in the Nueces County case; (4) the subject matter of this suit arises out of and concerns the same transactions or occurrences which are the subject matter of Plaintiffs' (Defendants here) claims in the Nueces County case and are incident to and connected with the same transactions or occurrences.
Additional findings were: (1) members of the Keys firm and Phillips firm formerly represented the Bank in litigation against a construction and a bonding company, Maryland American General Insurance Co. (MAGIC litigation); (2) in the Nueces County suit, filed October 28, 1976, Keys firm and Phillips firm seek to recover attorney's fees allegedly due them from the Bank for prior representation of Bank in MAGIC litigation; and (3) in this suit Bank seeks to recover damages occasioned by alleged wrongful retention of files which were developed in connection with the MAGIC litigation, and the Bank alleges that members of the Keys firm, the Phillips firm and all partners in such firms since May 25, 1976, are liable for such wrongful retention.
Conclusions of law by the trial court were: (1) the 28th District Court of Nueces County acquired jurisdiction of the parties in this cause prior to the time the instant suit was filed; (2) the 28th District Court acquired dominant jurisdiction of the real parties in interest to this cause and the claims, causes of action and issues between such parties, to the exclusion of other courts, including this court; (3) the Nueces Court having first acquired jurisdiction of the parties, claims and causes of action, may exercise that jurisdiction, adjust all the equities between the parties, and it is entitled to do so without interference from this court; (4) the causes of action and issues asserted by plaintiff in this cause arise out of the same occurrences or transactions and involve the same subject matter as are involved in the Nueces County case; (5) the claims and causes of action asserted by plaintiff could have been pleaded by it in the Nueces County case; and (6) this cause should be dismissed.
Appellant Bank brings two points of error: 1. The trial court erred in sustaining the plea in...
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...see also Dolenz v. Continental National Bank of Fort Worth, 620 S.W.2d 572 (Tex.1981); First State Bank of Bishop, Texas v. Norris, 611 S.W.2d 680 (Tex.Civ.App.--Tyler 1980, writ ref'd n.r.e.). The court's opinion today still pays lip service to this exception when it It is not required tha......
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