Smith v. Caldwell

ORDER

DUGGAN, Justice,

dissenting.

I respectfully dissent from the order denying the motion for rehearing. I would grant the petition for writ of mandamus and direct the trial court to rescind its order denying relator’s plea in abatement and to dismiss the later-filed Brazoria County suit between the same parties.

After the Harris County court sustained the Bank of Brazoria’s special exceptions to the relator’s counterclaim, I believe that the relator sufficiently amended his counterclaim to assert clearly, allegations of wrongdoing against both Marino and the Bank of Brazoria.

The final act of fraudulent conduct that relator alleged that Marino and the Bank of Brazoria committed against him occurred when Marino and the Bank of Brazoria allowed Marino’s 2,050,000 shares of the investment group’s 3,500,000 block of shares of Liberty Bank stock to be sold contrary to the terms of the security agreement and cross-collateralization provisions. This occurred when Marino placed with the Bank of Brazoria the loan financing for the entire investment group’s block of stock. Marino’s stock could not have been sold and released from the block without the active participation and approval of the Bank of Brazoria. Relator alleged that such release was done by the Bank of Brazoria, “a bank owned and/or controlled by Marino who was (and has remained) the chairman of its Board of Directors.” In arranging at the Bank of Brazoria for the preferential disposition of his own stock from the security package, Marino made himself personally liable for his conduct; however, the bank was also liable for Mari-no’s actions performed as its board chairman. That the bank will have an action against Marino for malfeasance should not prevent relator from obtaining relief against both Marino and the bank, which understandably seeks to avoid the consequences of its board chairman’s conduct in the scope of his duties as its officer.

The test usually stated in determining a right to abatement is whether judgment in the first action (here, relator’s counterclaim to the bank’s original suit on relator’s promissory note) would dispose of all issues in the second action (here, the Bank’s refiled later suit on the same promissory note). First State Bank v. Norris, 611 S.W.2d 680, 684 (Tex.Civ.App.—Tyler 1980, writ ref’d n.r.e.). The relator asserted, among other defenses, rescission of his promissory note. A finding in the Harris County suit that the Bank of Brazoria, through the conduct of its chairman imputable to the bank, was involved in the fraudulent scheme that induced relator’s signing of the note, would entitle relator to the legal remedy of rescission.

It is immaterial that the Bank of Brazo-ria from the outset may not have been part of the scheme that relator alleged. All conspirators are jointly and severally liable for wrongful acts done in furtherance of the conspiracy. This is true even though one of the conspirators enters into the conspiracy at a later time. State v. Standard Oil Co., 130 Tex. 313 , 107 S.W.2d 550, 560 (1937); Mims v. Bohn, 536 S.W.2d 568, 570 (Tex.Civ.App.—Dallas 1976, no writ).

Further, the required identity of issues between the parties need not be complete if, as to these issues, judgment in the first suit would foreclose the issues in the second suit. Dolenz v. Continental Nat’l Bank, 620 S.W.2d 572, 575 (Tex.1981); 2 R. *696 McDonald Texas Civil Practice in District and County Courts § 7.11 (rev.1982).

I believe that the requisite identity of issues and parties is shown in both the initial Harris County action and in the later-filed Brazoria County suit; that the Brazoria County district court abused its discretion in denying the plea in abatement; and that this Court should grant the petition for writ of mandamus.

I therefore dissent.