Green Oaks Apts., Ltd. v. Cannan

696 S.W.2d 415, 1985 Tex. App. LEXIS 7286
CourtCourt of Appeals of Texas
DecidedJune 28, 1985
Docket04-83-00300-CV
StatusPublished
Cited by14 cases

This text of 696 S.W.2d 415 (Green Oaks Apts., Ltd. v. Cannan) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green Oaks Apts., Ltd. v. Cannan, 696 S.W.2d 415, 1985 Tex. App. LEXIS 7286 (Tex. Ct. App. 1985).

Opinions

OPINION

CADENA, Chief Justice.

Plaintiffs, Green Oaks Apartments, Ltd., and Kenneth Wanamaker, Trustee, holders of a second lien on the Green Oaks Apartment Building in San Antonio, appeal from an order of a Bexar County district court dismissing their suit against defendant, [417]*417Morris Cannan, holder of the first lien in such property. The controversy concerns the efforts of defendant to foreclose his lien.

After defendant posted notices of foreclosure of his first lien, announcing that the foreclosure sale would be held on March 1, 1983, plaintiffs sought a temporary injunction in the United States Bankruptcy Court, in which Chapter 11 bankruptcy proceedings, instituted by plaintiffs, were pending. The bankruptcy court refused to issue the temporary restraining order enjoining the March 1st sale. On February 28, 1983, plaintiffs filed suit in the United States District Court for the Western District of Texas, seeking to enjoin the foreclosure sale. Later that same day plaintiffs filed this suit in the state district court seeking a temporary restraining order and a temporary injunction aimed at preventing the defendant from proceeding with the foreclosure sale, and on that date the state court issued a temporary restraining order enjoining defendant from proceeding with the sale. The state court designated March 8, 1983, as the date on which the hearing of plaintiffs’ application for temporary injunction would be heard.

Despite the restraining order, the trustee under the deed of trust proceeded with the sale and the property was sold to defendant on March 1st. On March 3rd the United States District Court denied plaintiffs’ application for a temporary restraining order, and on that date defendant filed in this case his motion to dissolve the temporary restraining order issued by the state court on February 28th.

Defendant’s motion to dissolve alleged that the state court lacked jurisdiction because of the pendency of the proceedings in the bankruptcy court and of the suit for injunction in the United States District Court and the denial of plaintiffs’ prayers for temporary restraining order in both suits. Defendant alleged that the actions of the federal courts were res judicata, and that the state court suit filed by plaintiffs were collateral attacks on the judgments of the two federal courts. Defendant prayed for the dissolution of the temporary restraining order.

The hearing on the motion to dissolve was set for March 4th, but there is nothing in the record to indicate that a hearing was held on such date.

On March 4th plaintiffs filed their response to the motion to dissolve, and on March 10th plaintiffs filed their first amended original petition in which they referred to the issuance of the temporary restraining order and the violation of such order by the holding of the foreclosure sale and the purchase of the property by defendant. Plaintiffs further alleged that defendant had ousted plaintiffs from possession of the property. After alleging that the foreclosure sale was void because it was consummated in knowing violation of the temporary restraining order of which notice had been served, plaintiffs prayed that (1) the foreclosure sale be declared void; (2) the court issue a temporary injunction enjoining defendant from interfering with plaintiffs’ possession and attempting to hold a foreclosure sale for a period of 60 days; (3) declaring that the temporary restraining order previously issued was a valid order; and (4) declaring the March 1st foreclosure sale void.

By order signed March 11th the trial court dismissed plaintiffs’ cause of action. This order contained a recital that defendant “is entitled to the relief requested in his pleadings concerning the plea in bar.”

At the time the order of dismissal was signed, the only pleading which had been filed by defendant was the motion to dissolve the temporary restraining order which had been issued on February 28th. No instrument had been filed by defendant containing a “plea in bar” or requesting dismissal of plaintiff’s cause of action.1

[418]*418The only possible grounds suggested by the record for the dismissal were the pendency of the bankruptcy suit and the application for injunction in the federal district court, plus the refusal of temporary restraining orders by both federal courts. Defendant’s motion to dissolve expressly invoked the doctrine of res judicata, based on the pendency of the federal proceedings. However, an order denying a temporary restraining order is not a final judgment and cannot support a plea of res judicata. An interlocutory order, with some exceptions not here applicable, lacks the finality required for invocation of the doctrine of res judicata. Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419 (1954).

The allegations in the motion, although made in support of the plea of res judicata, are sufficient to call the court’s attention to the fact that suits involving the same cause of action were pending in the federal courts. It is, perhaps, possible to interpret the allegations in the motion as sufficient to support a plea in abatement based on the pendency of other actions, previously filed in other courts.

The pendency of an action in federal courts involving the same parties and the same issues as those involved in a state court proceeding is not a reason for abating the proceedings in the state where the suit in the federal court is in personam. Williamson v. Tucker, 615 S.W.2d 881, 885 (Tex.Civ.App.—Dallas 1981, writ ref’d n.r. e.); Byrnes v. University of Houston, 507 S.W.2d 815 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n.r.e.). Defendant, without disputing this rule, urges that it is inapplicable because the federal suit involved in this case is an action in rem or. quasi in rem.

Strictly speaking, an action is “in rem” when it is taken directly against a thing and affects the interests of all persons in the world in the thing. Examples are statutory proceedings for the forfeiture of things used in violation of narcotics laws and other laws. Judgments in such actions, often bearing an intriguing style such as “State v. One 1963 Pontiac Automobile,” are binding upon the interests of all persons in the thing. Other examples are some admiralty cases and proceedings in probate courts. If the action affects only the interests of particular persons in the thing, it is often said that the action is in rem, although such an action is commonly referred to as being “quasi in rem.” An example of such an action in Texas is our action in trespass to try title. See RESTATEMENT (SECOND) CONFLICT OF LAWS p. 191 (1969).

Defendant cites no cases in support of his contention that the suit in federal court seeking injunctive relief is an action in rem or quasi in rem.

An action in personam is said to be one which has for its object a judgment against the person, as distinguished from a judgment against property to determine its status. An action in personam is sometimes defined as a proceeding to enforce personal rights or obligations, which action is brought against the person. 1 AM. JUR.2d Actions § 39. Such definitions are of little or no value, and as much guidance could be furnished by defining an action in personam as one which is neither in rem nor quasi in rem.

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Bluebook (online)
696 S.W.2d 415, 1985 Tex. App. LEXIS 7286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-oaks-apts-ltd-v-cannan-texapp-1985.