Lamar Sav. Ass'n v. White, 01-87-0259-CV

• Decision Date: 21 May 1987
• Docket Number: No. 01-87-0259-CV,01-87-0259-CV
• Citation: 731 S.W.2d 715
• Parties: LAMAR SAVINGS ASSOCIATION, Relator, v. The Hon. Frank O. WHITE, Judge of the 295th District Court of Harris County, Respondent. (1st Dist.)
• Court: Texas Court of Appeals

Page 715

731 S.W.2d 715

LAMAR SAVINGS ASSOCIATION, Relator, v. The Hon. Frank O. WHITE, Judge of the 295th District Court of Harris County, Respondent.

No. 01-87-0259-CV.

Court of Appeals of Texas Houston (1st Dist.).

May 21, 1987.

J. Graham Hill, Houston, for relator.

Daniel Kistler, Robert L. Collins, Robert L. Collins & Associates, Houston, for respondent.

Before DUGGAN, JACK SMITH and HOYT, JJ.

OPINION

DUGGAN, Justice.

This case arises from a suit filed in the 295th District Court of Harris County by Meyerland Company and Mike Adkinson (hereafter "Meyerland") against Lamar Savings Association and related parties (hereafter "Lamar"). Relator, Lamar, seeks writs to prohibit respondent, 295th District Court Judge Frank O. White, from entering further orders in the case, to compel respondent to withdraw orders he has already issued, and to compel respondent to grant a plea in abatement. The writs of prohibition and mandamus are conditionally granted.

The underlying facts of this case are lengthy and complex. Except as set out below, a recitation of most of the facts is unnecessary to the disposition of these proceedings.

On July 22, 1986, Lamar filed suit against Meyerland in the 345th District Court of Travis County. The suit claimed that Meyerland had defaulted on a promissory note payable to Lamar in the principal amount of $58 million on January 9, 1986. On July 21, 1986, Lamar filed suit against CDR Investments, Inc. (hereafter "CDR") in the 126th District Court of Travis County, and on July 29, 1986, Lamar filed suit against Brown Col Investments, Inc. (hereafter "BCI") in the 250th District Court of Travis County. The suits claimed that CDR & BCI were in default on promissory notes payable to Lamar. Meyerland was not a party to the CDR and BCI suits, and it was stipulated that Meyerland does not own or control CDR or BCI. The properties securing the Meyerland, CDR, and BCI notes were posted for an August non-judicial foreclosure by Lamar.

On August 4, 1986, Meyerland filed suit against Lamar in the 295th District Court of Harris County, alleging breach of contract, breach of confidential fiduciary duties, estoppel, usury, duress, and tortious interference. Meyerland pleaded for a temporary restraining order and a temporary injunction with respect to the foreclosure sales, and for money damages with respect to the allegations of tortious interference and usury. The petition factually alleged: (1) that Lamar agreed to extend the note to April 5, 1986, and that in reliance on that agreement, Meyerland paid Lamar $192,837.25 on March 31, 1986; (2) that Lamar agreed to extend the note for one year thereafter, and breached that agreement by wrongfully accelerating, by demanding full payment, and by giving notice of its intention to foreclose; ¹ (3) that when the note was originally executed, there existed a confidential relationship between Meyerland and Lamar, which caused Lamar to assure Meyerland that Lamar would continue to refinance the principal and interest of the note on an annual basis, despite contrary language in the written agreement; ² and (4) that Lamar made unconscionable demands on Meyerland, "seeking to divest itself of properties which LAMAR had taken by foreclosure, and also to require [Meyerland] to make payments on loans which were not obligations of [Meyerland]," as a condition of extending the note.

On August 8, 1986, Lamar filed a plea in abatement seeking to abate or dismiss the Harris County action on the ground that the Travis County courts had already acquired dominant jurisdiction over the parties and controversy by virtue of the previously filed suits. Respondent denied Lamar's plea in abatement.

On January 26, 1987, respondent signed a temporary injunction prohibiting Lamar: (1) from taking any steps to foreclose on the Meyerland, RDL Development, Inc. (hereafter "RDL"), BCI, and CDR properties; (2) from further declaring any default or acceleration on the indebtedness secured by those properties; and (3) from bringing or maintaining any action against Meyerland in any other court on any of the indebtedness secured by those properties.

The court in which suit is first filed acquires dominant jurisdiction over the subject matter and parties of the suit, to the exclusion of other coordinate courts, Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926), and no other court in which a subsequent suit is filed has the power to interfere. Johnson v. Avery, 414 S.W.2d 441 (Tex.1966).

In V.D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798 (1937), the court held that:

As a general rule, in order for the court where suit is first filed to have prior jurisdiction over the court where it is subsequently filed, the first court must have all necessary parties before it, or must have power to bring them before it.

While, as a general rule, a suit is commenced by filing a petition with the bona fide intention to prosecute it to judgment, still the mere physical filing of the petition is not sufficient to oust the court in which the same suit is subsequently filed of active jurisdiction.

Id., 128 Tex. at 637, 101 S.W.2d at 800-801.

We reject respondent's contention that there is not identity of parties because Meyerland has not been served with citation in the Travis County suit, and is therefore not subject to the jurisdiction of the Travis County court.

The record reflects that citation was issued on July 22, 1986, in the Travis County suit, the same day that suit was filed; that out-of-county service of the citation was unsuccessfully attempted on four different days between July 24, 1986, and July 30, 1986; that the citation was returned unserved by the Harris County constable; and that Judge White enjoined Lamar from proceeding in the Travis County suit on August 4, 1986, by issuing a temporary restraining order.

In Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733 (1932), the plaintiff in the first action, a suit to cancel a note, directed the clerk not to issue citation unless directed to do so. Four days later, the defendant in the first action commenced a second action in another county, seeking to enforce and collect the note. Plaintiff number one filed a plea in abatement, and plaintiff number two filed a sworn controverting affidavit alleging that plaintiff number one did not intend to issue process and prosecute the suit, but rather filed the first action only to prevent plaintiff number two from filing the latter suit on the note. The Texas Supreme Court held that the controverting affidavit raised a question of fact that was to be decided exclusively by the judge in the second suit.

Unlike the circumstances in Russell, there is no indication in the present record that Lamar withheld issuance of citation in the Travis County suit or acted in any manner to create a fact issue as to Lamar's bona fide intent to obtain service and to prosecute the suit. To the contrary, the record reflects that Lamar used the...