Williamson v. Tucker

Decision Date02 April 1981
Docket NumberNo. 20503,20503
Citation615 S.W.2d 881
PartiesJohn D. WILLIAMSON, Appellant, v. Fred E. TUCKER, Appellee.
CourtTexas Court of Appeals

E. Eldridge Goins, Jr., John O. Langdon, Goins & Underkofler, Dallas, for appellant.

Robert B. Payne, Payne & Spradley, Dallas, for appellee.



Plaintiff Fred Tucker sued defendant John Williamson on a note. Defendant raised affirmative defenses and a counterclaim, as well as filing several dilatory pleas and motions. The trial court granted plaintiff's motion for summary judgment. Defendant appeals from the judgment and urges sixty-five (65) points of error. We overrule each of defendant's points of error and affirm. The points of error and related facts will be discussed in general groups.


The facts surrounding this case are fully stated in Williamson v. Tucker, 632 F.2d 579 (5th Cir. 1980). From 1960 to 1969, Gordon G. Tucker, Fred E. Tucker, Jr. and Marvin M. Blakeney, Jr. each owned an undivided one-third interest in a 160-acre tract of land located between Dallas and Fort Worth (the Property). After the location of the Dallas-Fort Worth airport was announced, each of the Tuckers and Blakeney, in a separate transaction, sold his undivided interest in the Property. The first sale occurred in November, 1969, when Blakeney sold his undivided one-third interest to Kenneth M. Good and Associates, Trustee (Good and Associates).

The second sale occurred in May, 1970, when Fred Tucker sold his undivided one-third interest to a group composed of M. L. Godwin, L. R. Polan, Jr. and James F. Mason, all of whom are employees of M. L. Godwin Investments, Inc. (Godwin Investments). Although the contract of sale required the group to execute a promissory note in the principal sum of $1,000,000 to Fred Tucker, it permitted the group thereafter to form a joint venture, and if such was accomplished, to substitute a new note executed by all the joint venturers in lieu of, and in rearrangement of, the first note. In July, 1970, the Grapevine-Regional Airport No. 1 Joint Venture (Reg Air I) was executed by John D. Williamson and fifteen other investors for the purpose of purchasing the interest that Godwin, Polan and Mason had purchased from Fred Tucker. In December, 1970, this interest was conveyed to Reg Air I, and a promissory note in the principal amount of $1,000,000 was executed and delivered by Williamson and the other joint venturers to Fred Tucker in renewal and extension of the original note. Williamson purchased a 20% interest in the venture.

Subsequently, Gordon Tucker and Good & Associates sold their interests in the property in a similar manner. As of June, 1971, each of three separate joint venturers owned an undivided one-third interest in the Property. The ownership of each joint venture was different; each had acquired its interest at a different time; and each had paid a different consideration. The transactions were all arranged by Godwin Investments. Each of the purchases was financed by the execution and delivery of a fifteen year general liability promissory note.

In 1976 Williamson, Lilley, Wilson, and Blake filed suit in federal court seeking to rescind the joint venture agreements they had signed and cancel the notes they had executed. Each of these four persons had invested in one or more of the joint venture agreements. The federal district court dismissed the action for want of jurisdiction and an appeal was taken from that order. Following the order of dismissal, this suit was filed by Fred Tucker against Williamson. Gordon Tucker and the trustees of Home Interiors & Gifts, Inc., which had succeeded to the interest of Good & Associates, also filed separate suits in state court against Williamson, Lilley, Wilson, and Blake.

In this suit, Fred Tucker is suing Williamson for a deficiency judgment on the note given for the purchase of Tucker's interest in the property. Williamson urges points of error concerning the trial court's action on his motion to stay or plea to abate, the state case because of the pendency of the federal case, his motion to join various parties mentioned above and to consolidate this case with the other state cases, his motion to supplement the summary judgment evidence, his affirmative defenses and counterclaim and attorney's fees.


Defendant argues four points of error related to motions to stay or abate this case. In 1976, John Williamson and others sued Fred Tucker and others in federal court. The pleadings in the federal case raised some of the same issues that are involved in the case before the state courts that was filed subsequent to the federal case, although the posture of the parties is reversed. The federal district court's dismissal for lack of jurisdiction was reversed by the Court of Appeals for the Fifth Circuit in Williamson v. Tucker, 632 F.2d 579 (5th Cir. 1980) and the case was reinstated. Defendant urges to this court that the pendency of the federal action involving both of the parties before us and the same issues is a ground for abating, or in the alternative, staying the state court proceedings. We do not agree.

The rule is well settled in Texas that the mere pendency of an action in federal court involving the same parties and the same issues is not a reason for abating a state court proceeding. Byrnes v. University of Houston, 507 S.W.2d 815 (Tex.Civ.App. Houston (14th Dist.) 1974, writ ref'd n. r. e.); Aetna Casualty & Surety Co. v. Brunken, 373 S.W.2d 811 (Tex.Civ.App. Eastland 1963, writ ref'd n. r. e.); Trinity Universal Ins. Co. v. De Martini, 118 S.W.2d 901 (Tex.Civ.App. El Paso 1938, writ ref'd). Defendant relies on Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926), as establishing a contrary rule. Defendant's analysis of that case is, in our view, incorrect. Although there is language in that case which, when taken out of the context of the facts, supports defendant's position, that language is clearly dicta. Cleveland concerned a plea to abate one state court proceeding because of the pendency of a prior state court proceeding in another county. Both courts had been created by the same sovereign and thus, a proceeding in one of those courts was grounds for abating a subsequent proceeding involving the same parties and the same issues in a court in another county. That is not the case in this instance and the holding of the court in Cleveland does not control this case.

Likewise, the language of the supreme court in Fitch v. Jones, 441 S.W.2d 187 (Tex.1969), does not control the case before us. In Fitch, the court stated: "There would have been cause for abatement of this state case so long as the bankruptcy matter was pending, assuming that the disposition in the federal proceeding would have affected Fitch's claim." Id. at 188. An analysis of the case relied upon by the court in support of that proposition, Northeastern Real Estate Securities Corp. v. Goldstein, 276 N.Y. 64, 11 N.E.2d 354 (1937), shows that the peculiar nature of the federal proceeding, bankruptcy, was the controlling fact. See 56 ALR2d 335 at 338. We conclude that, under the authorities defendant has not demonstrated that he is entitled to have the state case abated. Thus, we hold that the trial court did not err in failing to abate the state case merely because there was a prior pending federal action involving the same parties and the similar issues.

In the alternative to his contention with respect to the plea in abatement, defendant urges that the trial court should have stayed the state court proceedings because of the action pending in federal court. While abatement, in a proper case, is a matter of right, a motion to stay is directed to the discretion of the court and the granting or denying of such a motion will only be reviewed for an abuse of discretion. Evans v. Evans, 186 S.W.2d 277 (Tex.Civ.App. San Antonio 1945, no writ). We conclude that no abuse of discretion is present in this case because, first, the federal action involves numerous parties that are not parties to this state court action and, additionally, the federal case was instituted by our defendant several years before this suit was filed by plaintiff. Both parties assert that the jurisdictional question in the federal courts is still pending on motion for rehearing before the Court of Appeals for the Fifth Circuit and there are suggestions that once that decision becomes final, review by writ of certiorari to the United States Supreme Court will be sought.

In support of his argument that the trial court should have stayed the state court proceedings, defendant relies on Alpine Gulf, Inc. v. Valentino, 563 S.W.2d 358 (Tex.Civ.App. Houston (14th Dist.) 1978, writ ref'd n. r. e.). In that case the court found an abuse of discretion in the failure to stay the proceedings because the same party filed suit in federal district court and five days later filed suit in the state courts of Texas seeking the same ultimate relief against the same parties. As indicated above, the nature of this suit, the posture of the suit in the federal courts, and the posture of the parties in the state court distinguishes this case from the case before the court in Alpine Gulf, Inc. We hold that there was no abuse of discretion in the refusal to stay the proceedings.


Defendant next complains of the trial court's refusal to join various other parties in the present suit and its refusal to consolidate this action with two later-filed state court actions. After plaintiff filed this suit, his brother Gordon Tucker and the trustees of Home Interiors and Gifts, Inc. filed separate suits in state courts seeking recovery on other promissory notes against Williamson, Lilley, Wilson, and Blake. Our plaintiff asserts no claim against Lilley, Wilson and Blake. Each of the notes sued...

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