Texas Commerce Bank Nat. Ass'n v. Tripp

• Decision Date: 01 November 1974
• Docket Number: No. 17548,17548
• Citation: 516 S.W.2d 256
• Parties: TEXAS COMMERCE BANK NATIONAL ASSOCIATION, Appellant, v. Fredda Bracken TRIPP et al., Appellees.
• Court: Texas Court of Appeals

Page 256

516 S.W.2d 256

TEXAS COMMERCE BANK NATIONAL ASSOCIATION, Appellant, v. Fredda Bracken TRIPP et al., Appellees.

No. 17548.

Court of Civil Appeals of Texas Fort Worth.

Nov. 1, 1974.

Rehearing Denied Dec. 6, 1974.

Evans, Pharr, Trout & Jones, and Chauncey Trout, Lubbock, for appellant.

Strasburger, Price, Kelton, Martin & Unis, and Robert L. Hoffman, Dallas, for appellees.

OPINION

LANGDON, Justice.

This is a plea of privilege appeal. Appellees, plaintiffs, brought suit in Wise County, Texas, seeking damages for wrongful garnishment against the garnishor and appellant, Texas Commerce Bank, and seeking release of the impounded funds from the resident defendant, The First National Bank, Bridgeport, Texas (hereinafter called Bridgeport Bank). Appellant filed a plea of privilege which was duly controverted and, after hearing thereon, the plea of privilege was overruled, from which action appellant has appealed.

The following points are presented on appeal:

The trial court erred in overruling the Texas Commerce Bank plea of privilege for the reasons that: (1) Title 12, Section 94 of the United States Code, gives an absolute right to National banks to have all suits filed against them tried in the County of residence of the Bank; (2) the plaintiff has failed to show any waiver on the part of the Bank of its right to be sued in the County of its residence; and (3) the plaintiff failed to prove the requirements of subdivision 4 or subdivision 23 of Article 1995, Vernon's Ann.Civ.St .

We affirm.

On March 5, 1973, appellant, contemporaneously with the filing of suit against Murrell R. Tripp in his individual capacity in Lubbock, Texas, obtained a writ of garnishment before judgment from the district clerk of Lubbock County, Texas, against the Bridgeport Bank, and caused its attorney to personally travel to Wise County the following day to deliver the writ of garnishment to the Wise County sheriff, to pay the appropriate fees and to see to it that the writ was immediately served upon the Bridgeport Bank. Although appellant's attorney was familiar with holdings in the United States Supreme Court cases of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), before he obtained the garnishment, the appellant purposefully obtained the writ and caused it to be served without any prior notice to appellees and in such a manner as to deprive them of any opportunity to be heard to challenge the legality and appropriateness thereof.

The testimony of Mr. George N. Atkinson, Executive Vice President of appellant Bank, established that the only debt which the Bank is asserting in connection with the garnishment without notice is alleged to be owing by Mr. Tripp, individually, and that there is no debt owing to the Bank by Mr. Tripp's wife, appellee Fredda Tripp. Yet the appellant garnished not only the account of Murrell R. Tripp, individually, but also extended the writ of garnishment to include, 'Murrell R. Tripp, Guardian of the Estate of Mary Bonner Tripp, Murrell R. Tripp, Trustee of the Estate of Jess R. Tripp, Murrell R. Tripp, Executor of the Estate of Mary Bonner Tripp and Murrell R. Tripp, Executor of the Estate of Jess R. Tripp.' Mary Bonner Tripp was the stepmother of Murrell R. Tripp for over 30 years and was living with Mr. and Mrs. Tripp in Wise County, Texas, at the time of her death on September 27, 1972.

Pursuant to the writ of garnishment before judgment, the Bridgeport Bank froze not only the account of Murrell R. Tripp ($684 .95), but also the accounts of the Estate of Mary Bonner Tripp ($725 .44) and the Fredda Bracken Tripp Real Estate Account ($3,082.00).

Appellees notified appellant no later than March 22, 1973, the date that plaintiff's original petition was filed in this cause, that the garnished accounts were not the property of Murrell R. Tripp, but that the accounts of Fredda Bracken Tripp consisted of her separate property and trust fund for her son, both of which were obtained before marriage. Appellant was also notified that the Estate of Mary Bonner Tripp still has outstanding debts, taxes and attorneys' and accountants' fees to pay and that all of such claims were, of course, prior to the alleged claim of the Lubbock Bank. Thereafter, in August of 1973, appellant deposed appellee Fredda Bracken Tripp and was again informed by her that the accounts were her separate property and Mr. Tripp had no interest in them.

Nevertheless, appellant continued the freeze placed upon the accounts until after the hearing on the plea of privilege was held on January 11, 1974, some ten months after the writ was served and over nine months after appellant was so notified that it had garnished accounts of parties against whom it had not asserted a claim. In addition to the fact that appellant was aware of the Fuentes and Sniadach cases, supra, plaintiff's original petition notified it again that the garnishment without notice or opportunity for hearing was actionable.

The testimony of both Mr. Tripp and appellee, Mrs. Tripp, at the pleas of privilege hearing, emphasized that Mr. Tripp had no interest in the accounts made the subject of this suit and that the estate is unable to pay its estate taxes and other debts as a result of the garnishment. Still the appellant took the position after hearing said testimony that both the estate accounts and Mrs. Tripp's account should continue to be frozen, and that if the Bridgeport Bank were to release such funds, it would do so at its own peril.

As a result of the garnishment without notice, the appellee estate has been unable to pay its inheritance taxes, accountants' fees and attorneys' fees, and is incurring penalties for such nonpayment of taxes. In addition, Mrs. Tripp had approximately 10 to 15 checks outstanding which required approximately $1,000.00 to cover, causing embarrassment and hardship to her. As a result of the garnishment, the merchants in the town of Bridgeport and Mrs. Tripp's friends and acquaintances learned of her inability to write checks, and she was requested to pay cash for her purchases. She has been hospitalized as a result of the mental stress arising from the garnishment and has incurred other medical expenses, and has felt compelled to resign from a women's club.

It is well established that the venue provisions of 12 U.S.C., Sec . 94, were enacted for the 'convenience' of banks and may be waived by the bank's conduct in the county where jurisdiction is sought to be maintained, whether such conduct occurred before or after the filing of the suit. Reaves v. Bank of America, 352 F.Supp. 745 (S.D .Cal., 1973). There the court held that a bank which allegedly wrongfully repossessed an automobile could be held accountable for the wrongful repossession in the courts of the district where it took place, even though the bank was, as here, headquartered elsewhere. In so holding the court cited with approval Michigan National Bank v. Superior Court, 23 Cal.App.3d 1, 99 Cal.Rptr. 823 (1972) as holding that, '. . . self-help under the California repossession statutes constituted a sufficient use of state process similar to the use of state courts.'

In the case at bar, the appellant tied up the funds in Wise County, Texas, by personally coming to the county and delivering the citation to the sheriff for service, thus invoking the sheriff's services as an officer of the court in Wise County....