Huston v. Federal Deposit Ins. Corp., 11-83-190-CV

• Decision Date: 22 December 1983
• Docket Number: No. 11-83-190-CV,11-83-190-CV
• Parties: Rex HUSTON, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION et al., Appellees.
• Court: Texas Court of Appeals

Page 126

663 S.W.2d 126

Rex HUSTON, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION et al., Appellees.

No. 11-83-190-CV.

Court of Appeals of Texas Eastland.

Dec. 22, 1983.

Rehearings Denied Jan. 18, 1984.

James J. Lee, Jeff Joyce and David A. Dean, Winstead, McGuire, Sechrest & Minick, Dallas, for appellant.

Frank L. Jennings & David Knight, Jennings, Dies & Turner, Graham, William G. Thompson, Thompson & Cook, Breckenridge, Deborah J. Loomis, Asst. Atty. Gen., Austin, David B. Lobingier, Bankston & Lobingier, Fort Worth, for appellees.

RALEIGH BROWN, Justice.

Rex Huston brought suit, individually and as a director of the Bank of Woodson, in the district court of Throckmorton County. Huston asserted the following causes of action: (1) declaratory judgment declaring the Bank of Woodson was not insolvent and was not in danger of insolvency; (2) writ of mandamus directing Bank Commissioner Robert E. Stewart to reopen the Bank of Woodson; (3) temporary restraining order, temporary injunction and permanent injunction against the FDIC to prevent it from issuing deposit insurance to the First State Bank of Woodson, formerly Woodson State Bank, and to prevent the FDIC from aiding the First State Bank of Woodson from commencing banking operations; (4) temporary restraining order, temporary injunction and permanent injunction against First State Bank to prevent the commencement of banking operations; (5) damages against Stewart for wrongful closing of the Bank of Woodson and for involvement in "the fraudulent plan, scheme and/or conspiracy" with the FDIC; (6) damages against Jim Hurst, special agent for the bank commissioner, for breach of fiduciary duty, for possession of bank records for personal gain and for fraudulent, corrupt and malicious actions of Hurst in revealing confidential information to the First State Bank; (7) damages against the FDIC for involvement in "the fraudulent plan, scheme and/or conspiracy" with Stewart; (8) writ of mandamus directing the Federal Deposit Insurance Corporation to allow Huston access to the Bank of Woodson's corporate books and records; (9) bill of discovery to permit Huston access to corporate books and records of the Bank of Woodson. The defendants filed pleas to the jurisdiction. The district court dismissed all causes of action for want of jurisdiction. We affirm in part, and we reverse, reinstate and remand in part.

On March 1, 1982, Bank Commissioner Stewart ordered the Bank of Woodson, located in Throckmorton County, closed. At that time, Huston owned 100 shares of Bank of Woodson stock and was a member of its board of directors. The Board of Directors of the Bank of Woodson challenged the closing pursuant to TEX.REV.CIV.STAT.ANN. art. 342-805 (Vernon 1973). Suit was filed within the five day time limit in Travis County. The Travis County district court dismissed for want of jurisdiction because the district court in Throckmorton County had exclusive jurisdiction. See Stewart v. Bank of Woodson, 641 S.W.2d 230 (Tex.1982).

Following the closing of the Bank of Woodson, a new bank named Woodson State Bank was organized in Throckmorton County. Woodson State Bank later changed its name to First State Bank of Woodson.

On May 2, 1983, Huston filed this suit in the Throckmorton County District Court. At the hearing on the pleas to the jurisdiction on May 25, 1983, First State Bank tendered into evidence the State Banking Board's order approving the Woodson State Bank Charter, Articles of Association for Woodson State Bank, Acceptance of Directors, Certificate of Certified Surplus, Amendments to the Articles of Association changing the name of the bank from Woodson State Bank to First State Bank of Woodson, and minutes of the first board meeting. This was the only evidence admitted at the hearing.

In reviewing an order dismissing for want of jurisdiction, the appellate court will construe the pleadings in favor of the pleader and look to the pleader's intent. Paradissis v. Royal Indemnity Company, 496 S.W.2d 146 (Tex.Civ.App.--Houston [14th Dist.] 1973), aff'd, 507 S.W.2d 526 (Tex.1974). In addition:

Only such matters which were presented before the trial court will be reviewed upon this appeal from the order sustaining the defendant's plea to the jurisdiction and dismissing the cause.

The trial court must apply the following standard:

Jurisdiction, at a hearing on a plea to the jurisdiction, is properly determined solely by the allegation in plaintiff's pleading and these allegations are taken as true. International Bank of Commerce of Laredo v. City of Laredo, 608 S.W.2d 267, at 270 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.). See also Hachar v. County of Webb, 563 S.W.2d 693 (Tex.Civ.App.--San Antonio 1978, writ ref'd n.r.e.); Brannon v. Pacific Employers Insurance Company, 148 Tex. 289, 224 S.W.2d 466 (1949).

Huston urges thirteen points of error. His first point contends the court erred in receiving evidence at the hearing challenging jurisdiction. First State Bank's evidence merely established that the Woodson State Bank had changed its name to First State Bank of Woodson and that the First State Bank was authorized to commence banking operations in Texas. These facts are not clear from Huston's petition. Any error in admitting this evidence is harmless. See TEX.R.CIV.P. 434. Huston's first point of error is overruled.

Huston contends in three points of error that the district court had jurisdiction to hear his writ of mandamus to compel Stewart to reopen the Bank of Woodson and his plea for declaratory judgment under TEX.REV.CIV.STAT.ANN. art. 342-807 (Vernon 1973). We disagree.

Article 342-807 states in part:

No state bank which has been closed under the provisions of Article 3 of this Chapter [Art. 342-803] shall be reopened unless the contest provided for under Article 5 of this chapter [Art. 342-805] is finally determined adversely to the Commissioner, or unless the Commissioner, acting under order of the district court, shall authorize such reopening by a certificate under the seal of his office.

Recovery under the first clause of Art. 342-807 is precluded because Huston failed to challenge the closing of the Bank of Woodson within five days by filing suit in the district court of Throckmorton County as required under Art. 342-805 ¹. Instead the challenge to the closing was filed in Travis County. The Supreme Court, in Stewart v. Bank of Woodson, supra, affirming the dismissal for want of jurisdiction, stated:

Since that procedure is exclusive, the only court authorized to grant the relief sought by the Bank was the district court sitting in Throckmorton County, the Bank's domicile. Article 342-805, TEX.REV.CIV.STAT.ANN. The Bank's failure to file its claim in that court within five days of closing, however, foreclosed the possibility of obtaining any relief to which the Bank might have been entitled under the statute.

Huston now contends that the second clause of 342-807, by which the commissioner may authorize the reopening of a bank under court order, grants the Throckmorton District Court jurisdiction to hear his claims. We disagree.

While jurisdiction is determined by looking to the pleadings, jurisdiction is not created by pleadings but by the duty and power of the court to act as conferred by the Texas Constitution and statutory enactments. Thomas v. Whaley, 561 S.W.2d 526 (Tex.Civ.App.--Texarkana 1977, writ ref'd n.r.e.). The Banking Code "provides a complete system of laws governing the organization, operation, supervision, and liquidation of state banks." TEX.REV.CIV.STAT.ANN. art. 342-101 (Vernon 1973).

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