State v. Cook United, Inc.

• Decision Date: 07 July 1971
• Docket Number: No. B--2642,B--2642
• Citation: 469 S.W.2d 709
• Parties: The STATE of Texas et al., Petitioners, v. COOK UNITED, INC., et al., Respondents.
• Court: Texas Supreme Court

Page 709

469 S.W.2d 709

The STATE of Texas et al., Petitioners, v. COOK UNITED, INC., et al., Respondents.

No. B--2642.

Supreme Court of Texas.

July 7, 1971.

Frank Coffey, Dist. Atty., Spencer Shropshire, Asst. Dist. Atty., Forth Worth, for petitioners.

Berman, Fichtner & Mitchell, Linda v. Whitley and Harold B. Berman, Dallas, Prager & Brown, Forth Worth, for respondents.

McGEE, Justice.

The State of Texas, by and through Frank Coffey, Criminal District Attorney of Tarrant County, Texas, filed four lawsuits seeking injunctive relief under Art. 286a, Vernon's Annotated Texas Penal Code, sometimes referred to as the Sunday Closing Law, against Cook United, Inc., M. N. Landau Stores, Inc., Clarks Texas, Inc., Clarks Arlington, Inc., doing business as Cooks Discount Department Store and Cooks Discount Center, Sundaco, Inc., Martin Stryer, Marshall Brinkley, Claude Crawford, Ed Croan, A. Cyr, David Deboard, Neal Dismukes, Jim Jett, Roy Rickard, J. C. Miller, Jay Fichtner and Harry Margolis. The State took a non-suit in one of the cases and the other three were consolidated. By way of cross action, the Respondents sought and obtained a temporary injunction enjoining the State of Texas, its Attorney General, all District and County Attorneys, and their agents and employees, and Tarrant and McLennan Counties from filing any new causes of action, suits in law or in equity against or involving any of the Respondents, their agents and employees, the object of which would be to obtain Injunctive or Civil relief pursuant to Art. 286a, Vernon's Annotated Texas Penal Code and/or Chapter 15, Business and Commerce Code of Texas, pending final adjudication of all existing and pending litigation by, between and among any and all of the parties to the cause then pending * * * 'provided however, this order shall in no way affect the status or prosecution of the current, pending litigation heretofore filed by the State of Texas and County of Tarrant.' This judgment was affirmed by the Court of Civil Appeals, 463 S.W.2d 509. We modify and affirm the judgments of the courts below.

Mr. Fichtner, an officer in Sundaco, Inc., described the arrangement with these other corporations. Sundaco purchases the stock of merchandise at various locations throughout the State of Texas on Saturday during the term of the agreements. It also has leases on each of the locations for the period of time from 11:59 p.m. on Saturday until midnight on Sunday. Sundaco buys the inventory on Saturday night and sells the remaining inventory back at midnight on Sunday. All of Sundaco's agreements with the other corporate entities are 'basically the same.'

The evidence supports the findings of the trial judge:

'* * * that commencing in September, 1967 the State of Texas, acting by and through various district and county attorneys have filed no less than ten lawsuits, in each occasion naming one, more or all of the Cross-Plaintiffs herein and seeking injunctive relief against one, more or all of the Cross-Plaintiffs herein; that four (4) lawsuits have been filed in McLennan County, three (3) lawsuits have been filed in Tarrant County, two (2) lawsuits have been filed in Taylor County, two (2) lawsuits have been filed in Brazos County, one (1) lawsuit has been filed in Lubbock County and one (1) lawsuit has been filed in Ector County; that each of said lawsuits sought basically the identical relief of an immediate Restraining Order or Temporary Injunction under the provisions of Article 286a, Texas Penal Code and/or Chapter 15 of the Business and Commerce Code of the State of Texas; that each of such lawsuits has essentially identical parties; that essentially that same cause of action is involved in each lawsuit; that the evidence is clear and convincing that the multiplicity of lawsuits filed by the State of Texas has been harassing and vexatious to the Cross-Plaintiffs and cumulatively they have constituted harassment to Cross-Plaintiffs and vexatious litigation; that this court, having jurisdiction of the parties and subject matter hereof, finds that it is necessary, in order to prevent further multiplicity of suits and vexatious litigation and to prohibit the use of the judicial processes for purposes of harassment to grant injunctive relief.'

In some of the cases against these Respondents the State was guilty of particularly vexatious and harassing litigation in that it would file suit on Friday, obtain a temporary restraining order without notice, succeed in thus closing Sundaco's operations for two weekends, and then take a non-suit.

At the time of the hearing on this temporary injunction, only one suit had been reduced to final judgment; the District Court in Ector County had denied the State's petition for temporary injunction holding that the Sundaco contracts and operations were not in violation of the statutes.

The trial judge has broad discretion in the granting or refusing of a temporary injunction. His judgment on appeal will not be overturned unless the record discloses a clear abuse of discretion. Texas Foundries v. International Moulders and Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460 (1952). We find no error and no abuse of discretion in the trial court's action in granting a temporary injunction when such relief is necessary to prevent multiplicity of suits, avoid vexatious litigation and to prohibit the use of judicial processes for the purposes of harassment. University of Texas v. Morris, 162 Tex. 60, 344 S.W.2d 426 (1961); Repka v. American National Ins. Co., 143 Tex. 542, 186 S.W.2d 977 (1945).

Petitioner contends that the Court of Civil Appeals erred in holding that the trial court did not abuse its discretion by enjoining all new suits to obtain Civil or Injunctive relief under Article 286a, Vernon's Annotated Texas Penal Code and/or Chapter 15, Business and Commerce Code of Texas. Petitioner argues that such decision is in conflict with City of Fort Worth v. Craik,411 S.W.2d 541 (Tex.Sup.1967); City of Richardson v. Kaplan, 438 S.W.2d 366 (Tex.Sup.1969); Crouch v. Craik, 369 S.W.2d 311 (Tex.Sup.1963); and Spartan Industries, Inc. v. State of Texas, 379 S.W.2d 931 (Tex.Civ.App.1964, no writ hist.). These cases hold that a court of equity has no jurisdiction to enjoin enforcement of a penal statute unless (1) such statute is void or unconstitutional, and (2) vested property rights are being impinged as a result of an attempt to enforce such void statute. No restraint was imposed in...