K. M. S. Research Laboratories, Inc. v. Willingham

• Decision Date: 08 February 1982
• Docket Number: No. 20895,20895
• Parties: K.M.S. RESEARCH LABORATORIES, INC., Appellant, v. Nancy P. WILLINGHAM, Appellee.
• Court: Texas Court of Appeals

Page 173

629 S.W.2d 173

K.M.S. RESEARCH LABORATORIES, INC., Appellant, v. Nancy P. WILLINGHAM, Appellee.

No. 20895.

Court of Appeals of Texas, Dallas.

Feb. 8, 1982.

Michael Braden, Carrington, Coleman, Sloman & Blumenthal, Dallas, for appellant.

Joe Smith, Baker, Foreman & Boudreaux, Dallas, for appellee.

Before CARVER, WHITHAM and GUILLOT, JJ.

GUILLOT, Justice.

This is an appeal from the granting of a motion to dismiss a counterclaim under the Uniform Declaratory Judgments Act. Appellant alleges the trial court erred by not allowing appellant an opportunity to state a cause of action by amending its pleadings. We disagree with appellant and affirm.

Nancy P. Willingham filed a personal injury suit in Dallas County against The Hair Jammer and KMS Research Laboratories, Inc. alleging she had been harmed by a certain hair product. The Hair Jammer's plea of privilege was sustained and that portion of the action was transferred to Collin County. KMS, being held to answer in Dallas, filed a counterclaim under the Uniform Declaratory Judgments Act, Tex.Rev.Civ.Stat.Ann. art. 2524-1 (Vernon 1965), asking for a determination as to whether it was liable to Willingham. Willingham then took a non-suit against KMS and filed a "Motion to Dismiss" KMS' counterclaim on the ground that KMS failed to state a cause of action. The motion to dismiss was granted and KMS appeals.

KMS' two points of error are related. The first is that the trial court should have given KMS opportunity to amend its counterclaim in order to set forth a cause of action. The second is that, given the opportunity KMS could have in fact pleaded a cause of action under the Uniform Declaratory Judgments Act. We need not pass on the first point, since we hold that even if KMS had been permitted to amend, no proper cause of action for declaratory relief could have been stated.

KMS' counterclaim seeks a determination of non-liability for the injury alleged by Willingham. At the outset, we admit the language of the Uniform Declaratory Judgments Act does appear broad enough to encompass a declaration of non-liability to an alleged tortfeasor. Section 1 provides that the courts:

(S)hall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree.

Tex.Rev.Civ.Stat.Ann. art. 2524-1, § 1 (Vernon 1965).

Texas cases on this use of the Act provide little guidance. In Ainsworth v. Oil City Brass Works, 271 S.W.2d 754 (Tex.Civ.App.-Beaumont 1954, no writ), the Beaumont Court of Civil Appeals held that the Act was a proper mode for determining the right of a forge to continue in operation in the face of threatened nuisance lawsuits. In Southern Traffic Bureau v. Thompson, 232 S.W.2d 742 (Tex.Civ.App.-San Antonio 1950, writ ref'd n.r.e.) the San Antonio Court denied the use of the Act to parties who sought a declaration as to whether certain claims handling methods constituted barratry. Finally, in Emmco Insurance Company v. Burrows, 419 S.W.2d 665 (Tex.Civ.App.-Tyler 1967, no writ), the Tyler court also denied use of the Uniform Declaratory Judgments Act where there was a purely factual question of whether or not the defendants had acted in "consort" to suspend interest payments on a note.

In seeking more positive guidance, we observe that Section 15 of the Act provides:

This Act shall be interpreted and construed as to effectuate its general purpose to make uniform the law of those States which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgment and decrees.

Thus, by express legislative intent, our decision must be made in conformity with other jurisdictions.

The federal cases are unequivocal. While noting that refusing to enter a declaratory decree is discretionary with the trial court, every case found holds that litigation of liability by a potential defendant in a tort action is an improper use of declaratory judgment legislation. See Cunningham Brothers, Inc. v. Bail, 407 F.2d 1165 (7th Cir.), cert. denied, 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 745 (1969); Frito-Lay, Inc. v. Dent, 373 F.Supp. 771 (N.D.Miss.1974); States Steamship Company v. Featherstone, 240 F.Supp. 830 (D.Ore.1965); Sun Oil Co. v. Transcontinental Gas Pipe Line Corp., 108 F.Supp. 280 (E.D.Pa.1952), aff'd, 203 F.2d 957 (3rd Cir. 1953).

Among the States, it appears that only Idaho has ruled on this application of declaratory judgments, and it, too, has held this use improper. See Ennis v. Casey, 72 Idaho 181, 238 P.2d 435 (1951). Only in Ditzler v. Spee, 288 Minn. 314, 180 N.W.2d 178 (1970), has a state court allowed the use of a declaratory judgment action to litigate tort liability. In Ditzler, however, the need to prevent multiple lawsuits and the peculiar positions of the parties appear to have been overriding considerations.

Thus, following the express intention of the Act to harmonize the laws of Texas with those other States and the federal laws, we hold that KMS improperly attempted to litigate its liability to Willingham by seeking a declaratory judgment. Therefore it could not have stated a cause of action under the Act and Willingham's motion to dismiss was properly denied.

Furthermore, the entertaining of a declaratory judgment rests with the sound discretion of the trial court. President v. Vance, 627 F.2d 353 (D.C.Cir.1980). We find no abuse of discretion.

Affirmed.

CARVER, Justice, dissenting.

I respectfully dissent. In my view, the Uniform Declaratory Judgment Act is a proper vehicle for a defendant's counterclaim seeking a declaration of non-liability to a particular tort claim as asserted in a plaintiff's suit on file. Consequently, I would hold that the trial court erred in dismissing the counterclaim on the ground that it failed to state a cause of action.

The scope of the Uniform Declaratory Judgment Act is stated as follows:

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.

Tex.Rev.Civ.Stat.Ann., art. 2524-1, Sec. 1 (Vernon 1...