New Process Steel Corp. v. Steel Corp. of Texas

• Decision Date: 06 May 1982
• Docket Number: No. 01-82-0002-CV,01-82-0002-CV
• Citation: 638 S.W.2d 522
• Parties: NEW PROCESS STEEL CORP., E. R. Fant, Inc. and S & S Alloys, Inc., Appellants, v. STEEL CORP. OF TEXAS, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 522

638 S.W.2d 522

NEW PROCESS STEEL CORP., E. R. Fant, Inc. and S & S Alloys, Inc., Appellants, v. STEEL CORP. OF TEXAS, Appellees.

No. 01-82-0002-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

May 6, 1982.

Richie & Greenberg and Susan D. Steinfink, Houston, for appellants.

Bracewell & Patterson, William Key Wilde, Green, Sims, Vanof & Lee, Tom Sims, Houston, for appellees.

Before PRICE, WARREN and DUGGAN, JJ.

PRICE, Justice.

This is an appeal from the denial of a temporary injunction that sought to prevent appellee from prosecuting a suit in Tulsa, Oklahoma involving substantially the same parties and the same issues.

New Process Steel (NPS) and Steel Corp. of Texas (SCOT) are both creditors of S & S Alloys, Inc. (S & S). E. R. Fant, Inc. is a holding company which, in January 1979, acquired all of the stock of S & S. E. R. Fant is the principal shareholder of E. R. Fant, Inc., and has control of NPS.

In January, 1978, S & S executed a $1,000,000.00 note to SCOT secured by all of the assets of S & S due to the previous debts owed to SCOT. Later in 1978, an alleged agreement was reached whereby NPS would purchase the stock of S & S. There were negotiations between the parties concerning the reorganization of S & S's debt to SCOT. The terms of the agreement that were allegedly finalized included: 1) cancellation of the $1,000,000.00 note; 2) release of mortgage liens upon real estate owned by S & S; 3) and a release of security interests in all inventory and accounts receivable owned by S & S.

Appellants filed suit in Harris County on August 16, 1979, alleging that SCOT had refused to perform on the agreement. Appellee, Scot, maintains that Mr. Keifer, past president of SCOT, who negotiated the contract with NPS and S & S, did not have authority to do so, and filed suit in Tulsa, Oklahoma, on September 26, 1979, seeking recovery on the note and appointment of a receiver to prevent concealment of S & S's assets. On October 12, 1979, the trial court appointed a receiver. Since that time, appellants have twice sought a plea in abatement in the Oklahoma Court to abate that action. Both times the Oklahoma court denied the plea. Appellants thereafter filed an injunction proceeding in the 133rd District Court of Harris County to enjoin the appellee from proceeding with the Oklahoma suit. This injunction was denied by the trial court.

The appellants raise only one point of error alleging that the trial court erred in denying the request for injunctive relief. In claiming their right to an injunction as a matter of law, the appellants argue:

1) that the doctrine of comity dictates that the case should proceed to judgment in the jurisdiction which attached first;

2) that the denial of the injunction promotes a multiplicity of suits;

3) that they are irreparably harmed by the expense of litigating the case in Oklahoma since some witnesses reside in Texas and corporate records and books would have to be sent to Oklahoma;

4) that the doctrine of forum non conveniens dictates that the case would be more appropriately tried in Texas;

5) and finally that the existence of a receiver in Oklahoma would not prevent a determination by the Texas Court of the issues to be resolved, since a determination of those issues would in no way affect the receiver's powers or custody over the res.

Trial courts have broad discretion in granting or denying temporary injunctions. Hartwell's Office World, Inc. v. Systex Corp., 598 S.W.2d 636 (Tex.Cr.App.--Houston [14th Dist.] 1980, ref'd n. r. e.). The appellate court cannot substitute its discretion for that of the trial court; it has no independent discretion in reviewing an order. Our sole function is to determine whether there has been a clear abuse of discretion by the trial judge. Texas Foundries v. International Moulders and Foundry Worker's Union, 151 Tex. 239, 248 S.W.2d 460 (1952). Here, as no findings of factor conclusions of law were filed, the trial court's judgment must be upheld on any legal theory supported by the record. In determining the sufficiency of the evidence as a matter of law to support the ruling of the trial court, we are obligated to disregard all adverse evidence and give credit to all evidence that is favorable to the successful party, indulging every reasonable conclusion that is favorable to him. Farmers Butane Gas Co., Inc. v. Walker, 489 S.W.2d 949 (Tex.Civ.App.--Waco 1973, no writ); Seamen v. Seamen, 425 S.W.2d 339 (Tex.1968).

The appellants first argue that the doctrine of comity dictates that the court in which jurisdiction attached first is the court which should be entitled to proceed to judgment.

Comity is not a rule of law but a principle of mutual convenience whereby one state or jurisdiction will give effect to the laws and judicial decisions of another. It operates not as a matter of obligation but only out of deference and respect. Thus, appellant is not entitled to the application of comity as a matter of right but only as a courtesy if the trial court in its discretion chooses. The failure to do so in the present case is neither error nor an abuse of discretion.

The appellants next argue that the denial of the injunction promotes a multiplicity of suits. They cite, as authority, several cases where Texas Courts have enjoined intrastate proceedings where there is a showing of vexatious litigation to prohibit the use of the judicial process for purposes of harassment. While this theory can be a ground for seeking such an injunction, we feel it is inapplicable here because the Oklahoma court has possession and...