Stoner v. Thompson, 5854

• Decision Date: 24 August 1978
• Docket Number: No. 5854,5854
• Parties: Roger H. STONER, Appellant, v. Joe Glenn THOMPSON et al., Appellees.
• Court: Texas Court of Appeals

Page 511

570 S.W.2d 511

Roger H. STONER, Appellant, v. Joe Glenn THOMPSON et al., Appellees.

No. 5854.

Court of Civil Appeals of Texas, Waco.

Aug. 24, 1978.

Rehearing Denied Sept. 14, 1978.

Patrick J. Horkin, Jr., Horkin & Horkin, Corpus Christi, for appellant.

Hall E. Timanus, Andrews, Kurth, Campbell & Jones, William E. Matthews, Sewell, Junell & Riggs, David J. Beck & Simeon T. Lake, III, Fulbright & Jaworski, Houston, for appellees.

OPINION

JAMES, Justice.

This is an appeal from a judgment against Appellant Roger H. Stoner, same including a declaratory judgment, a permanent injunction, and a judgment for damages. We affirm the trial court's judgment.

At all times material to this controversy, Appellant Stoner was the owner of 49% Of the common stock of Texas Media Group, Inc., a corporation, the primary asset of which was Radio Station KZFM located in Corpus Christi, Texas. Stoner was also general manager of said radio station. Appellee Joe Glenn Thompson was the owner of three percent of the common stock, with the remaining 48% Thereof being owned by Dr. Frank Gerow, Dr. Page Nelson, and Dr. Ray Reid.

In the summer of 1976 the owners of 51% Of the common stock, that is, Thompson and the three Doctors hereinabove named, became interested in selling their stock in Texas Media. Appellees Arnold Malkan and wife Audrey Malkan sent a written tender offer to all the stockholders, including Stoner. Stoner did not accept the offer, but Thompson and the three Doctors did accept. However, at the time, Dr. Nelson was hospitalized, and there was some question as to whether he, Dr. Nelson, had actually transfered physical possession of his shares in Texas Media. Before this question could be resolved, on September 2, 1976, Stoner filed the instant litigation in a district court in Harris County seeking specific performance of his alleged prior agreement with Thompson and Nelson to buy their stock. On September 13, 1976, the Malkans intervened in the Harris County suit seeking to protect their alleged agreement to purchase the Texas Media stock in question. Thereafter the Malkans filed a counterclaim against Stoner for interference with the Malkans' contractual relationship with Thompson. Stoner answered the Intervention and Counterclaim and cross-acted against the Malkans, Gerow, Reid, Nelson, and Thompson.

Stoner sought a temporary injunction in the Harris County suit, seeking to enjoin the sale of Thompson's stock to the Malkans. After temporary hearing, the trial court denied Stoner this relief; but did, however, order that Stoner be permitted to remain as radio station manager at KZFM conditioned upon his posting a bond. Stoner never posted a bond, but instead filed a suit in the 148th District Court of Nueces County seeking, among other things, injunctive relief against Texas Media, Gerow, and Reid, to prevent them from dismissing him as radio station manager at KZFM. Before Texas Media was served in the Nueces County suit, it intervened in the Harris County suit seeking a declaratory judgment as to its rights and liabilities. Texas Media then filed a motion to abate the Nueces County suit; but, before the Court in Nueces County could pass upon that motion, Stoner dismissed the suit in Nueces County.

Meanwhile, on November 23, 1976, the Malkans entered into a written contract with Gerow, Reid, Nelson and Thompson whereby the Malkans agreed to purchase the 51% Of the stock belonging to said named stockholders, who in turn agreed to sell their stock at an agreed price.

Texas Media filed an application for injunctive relief against Stoner in the Harris County suit; and on December 10, 1976, the Harris County District Court entered a temporary injunction against Stoner, wherein said court ordered Stoner to vacate the premises of Radio Station KZFM and enjoined him from denying Texas Media and its president, Gerow, control and possession of the books and records of the station. Stoner appealed this temporary injunction, and the First Court of Civil Appeals at Houston, Texas, subsequently on May 12, 1977, reversed the temporary injunction and dissolved same. See Stoner v. Thompson (Houston 1st Tex.Civ.App.1977) 553 S.W.2d 150, NRE).

On February 14, 1977, Stoner filed his second amended original petition in the Harris County suit; then three days later, to wit, on February 17, 1977, he filed a motion nonsuiting all claims for affirmative relief pending in Harris County. Then on that same day, Stoner filed a new lawsuit in the 105th District Court of Nueces County against Thompson and Nelson. Both Thompson and Nelson answered in the Harris County suit before the order on Stoner's nonsuit was entered; but, neither of them had filed counterclaims against Stoner before he nonsuited them. However, Thompson and Nelson thereafter filed counterclaims against Stoner in Harris County; but no service of process was obtained against Stoner concerning such counterclaims prior to the trial on the merits which began on July 11, 1977.

On June 10, 1977, the Malkans filed a motion for preferential setting of the instant suit on the merits, pursuant to which motion the trial court gave the case a preferential setting for July 11, 1977. On June 30, 1977, Stoner filed an original and then on July 8, 1977, he filed a supplemental motion to set aside the trial court's order granting preferential setting. After hearing, the trial court overruled both motions. On the day and at the time set for trial, Stoner filed a special appearance under Rule 120a; and at said time, Stoner's attorney appeared; whereupon the trial court overruled Stoner's special appearance. At this point Stoner's attorney advised the court that he declined to proceed further, and left the courtroom, and thereafter neither Stoner nor his counsel participated in the case.

The court proceeded to trial without a jury, after which the trial court entered judgment on July 15, 1977, which judgment contained the following:

(1) Texas Media Group, Inc.: was awarded judgment against Stoner in the amount of $50,000.00.

(2) The Malkans were awarded judgment against Stoner for $37,498.32.

(3) The court adjudicated that Stoner never had any valid contract, oral, written, or implied, with either Thompson or Dr. Nelson to purchase their shares in Texas Media.

(4) The court found that Stoner had been discharged as general manager of Radio Station KZFM by corporate action on November 27, 1976, and had thereafter without authority maintained possession and control of the premises of said radio station and also the corporate records of Texas Media, and has wrongfully prevented the corporate offices from exercising control of said premises and records. For these reasons, Stoner was permanently enjoined:

(a) From acting in behalf of Texas Media or the radio station as agent, manager, employee or officer thereof.

(b) From interfering with the officers, agents or employees of Texas Media in the operation of the radio station.

(c) From preventing the officers of Texas Media from taking possession of the radio station and the corporate records.

(d) From interfering with the corporate officers of Texas Media concerning licensing procedures before the Federal Communications Commission or any other governmental agency.

(e) From interfering with the transfer of Texas Media stock from Gerow, Nelson, Reid, and Thompson to the Malkans pursuant to the written contract of November 23, 1976, in which the above named persons were signatories and parties thereto.

(f) From interfering with Texas Media and the Malkans in their efforts to secure governmental approval of stock transfers hereinabove mentioned.

In addition, Stoner was ordered immediately to vacate the premises of the radio station and never again enter therein...