Ginther v. Texas Commerce Bank

111 F.R.D. 615, 4 Fed. R. Serv. 3d 1356, 1986 U.S. Dist. LEXIS 24991
CourtDistrict Court, S.D. Texas
DecidedMay 28, 1986
DocketCiv. A. No. H-85-6191
StatusPublished
Cited by2 cases

This text of 111 F.R.D. 615 (Ginther v. Texas Commerce Bank) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ginther v. Texas Commerce Bank, 111 F.R.D. 615, 4 Fed. R. Serv. 3d 1356, 1986 U.S. Dist. LEXIS 24991 (S.D. Tex. 1986).

Opinion

MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

NORMAN W. BLACK, District Judge.

This is the latest in a series of law suits filed by Fergus M. Ginther, hereinafter (“Ginther”), a lawyer, who is presently represented by Mr. Benton Musslewhite.

The Court is of the opinion that the case at bar is an example of the kind of abuse which the drafters of Fed.R.Civ.P. 11 sought to prevent. The Court is confronted with a pattern of continuing harassment, misuse of the Court’s resources, abuse of opposing parties and disobedience of Court orders. Such abuse justifies the imposition of sanctions under Rule 11 and 28 U.S.C. § 1927 against Ginther and his current attorney in the amount of $167,-500.00 as herein below explained. For the reasons set forth below, and pursuant to the requirements of Fed.R.Civ.P. 52(a), the Court concludes that its actions are mandated by the facts presented in this case after the taking of evidence and upon consideration of the applicable law.

If Mr. Musslewhite or any other reasonable attorney had made the inquiry he is required to make under Rule 11, he would have learned the history of Ginther’s previous suits and would not have undertaken to file the instant suit. This Court had no choice but to grant the motions for summary judgment, dismissal and sanctions filed by the various Defendants. Furthermore, due to Ginther’s pursuit of nonmeritorious claims, and nonresponsiveness to court orders and sanctions, this Court also must grant Defendants’ application for permanent injunctive relief.

During the past six years, Ginther has engaged in a series of lawsuits and requests for court action in state, federal, bankruptcy and federal appellate courts. Ginther’s discovery abuses and other abuses of the judicial system throughout the various actions have led to his being sanctioned by these various courts, including this Court, on numerous occasions. Unfortunately, those sanctions have not yet been sufficiently severe to deter him from continuing to file volumes of pleadings which merely reurge upon the courts the same set of factual allegations under the guise of another legal theory. In the instant suit, and during the course of each prior litigation, Ginther exhibited a pattern of failing to honor the legitimate discovery requests of the various opposing counsel who tried to determine the factual and legal bases of his claims.

Ginther’s latest suit arises out of four sets of transactions: (1) the 1979 decision by Texas Commerce Bank-Greenway Plaza, N.A. not to extend additional credit to Ginther and his companies after their default in payment; (2) the September, 1981 filing of an involuntary bankruptcy proceeding against Ginther and his business entities; (3) a business relationship between Ginther and Ralph G. Ragland (hereinafter “Rag-land”) regarding a building project known [617]*617as “the 7211 project;” and (4) the issuance of a writ of attachment against Ginther in November, 1983.

All of these matters have been the subject of previous litigation which resulted in adjudications adverse to Ginther. Ginther’s counsel tried to avoid the res judicata issue by urging a conspiracy theory, which would link all of the previous acts into a massive ongoing conspiracy. This theory, if viable, would also avoid the limitations bar to many of his claims. However, the conspiracy theory fails, as none of the Defendants who have been Ginther’s prior creditors and adversaries have engaged in the alleged wrongful acts. With no wrongful act shown, no one can have conspired to commit a wrongful act. The conspiracy theory is an attempt to ignore the fact that the issues raised in the present suit are barred by res judicata. The only real distinction in the instant suit is the addition of Adriana Newsom, Ginther’s girlfriend, as another party Plaintiff. Any attempt to examine the pleadings on file at this Court and in the state courts regarding these matters would have convinced any reasonable attorney of the futility of filing the instant suit. Moreover, on May 16, 1985, this Court ordered Ginther and his attorneys not to file another suit regarding the matters stated by Mr. Musslewhite to be the heart of the present suit.

Ginther’s present suit reurges various claims against Texas Commerce Bank arising from a banking decision in 1979 to discontinue extending credit to Ginther. Later that year, the Bank filed a collection suit against Ginther, who counterclaimed. That suit is still pending today in the state courts. Consequently, filing of the instant suit was absolutely unnecessary for the protection of any claims Ginther might have against Texas Commerce Bank.

Ginther previously lost the opportunity to litigate the Texas Commerce Bank matter in federal court because he had failed to comply with court orders. In early 1980, Ginther filed a separate suit styled Ginther-Davis Construction Co., Inc., et al., v. Texas Commerce Bank, et al., C.A. No. 80-687 in the United States District Court (Judge Singleton, presiding). His suit alleged the same facts and transactions as in the state court counterclaim, except that he asserted additional causes of action which he alleged entitled him to recover $250,-000,000.00 in damages from the Bank. Approxixmately one year after the Defendants appeared and asserted defenses, Judge Singleton dismissed the action with prejudice due to Ginther’s numerous discovery abuses.

Even though Ginther had ample opportunity to present his claims in Judge Singleton’s court, he lost that opportunity by his own conduct. He is not entitled to bring those claims before this Court again, and his instant suit demonstrates conscious indifference to the nature and purpose of the sanctions previously imposed against him.

Any inquiry into the facts would also have revealed to counsel that the claims surrounding the filing of the involuntary bankruptcy had also been previously litigated. In September, 1981, Texas Commerce Bank—Greenway Plaza, N.A. filed an involuntary bankruptcy petition against Ginther and various Ginther companies, alleging his insolvency. Ginther contested the petition and counterclaimed on several grounds including that the Bank’s petition was filed in bad faith because Ginther had more than twelve creditors and, therefore, Texas Commerce Bank should have found two additional creditors to join in the involuntary petition.1 Eventually, the bankruptcy court (Judge Patton, presiding) heard evidence on the involuntary petition and on Ginther’s counterclaims against the petitioning creditors for wrongful filing. The Bankruptcy Court concluded that the petitioning creditors had met their burden of [618]*618proof, and an order for relief was entered on September 7, 1982. The order also dismissed Ginther’s various counterclaims against the petitioning creditors. Ginther’s motion for a new trial was overruled. He did not appeal.

The order for relief is a conclusive adjudication that the filing of the involuntary proceeding was proper and that Ginther had no meritorious counterclaims against the petitioning creditors based on that filing.

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Cite This Page — Counsel Stack

Bluebook (online)
111 F.R.D. 615, 4 Fed. R. Serv. 3d 1356, 1986 U.S. Dist. LEXIS 24991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ginther-v-texas-commerce-bank-txsd-1986.