Green Oaks Apts., Ltd. v. Cannan
696 S.W.2d 415
Tex. App.
1985
Check Treatment

*1 jurisdiction, for a valid want because PRESSLER, Before PAUL MURPHY granting interlocutory a new trial is DRAUGHN, JJ. See Cummins v. Pai appealable. and not san Construction OPINION (Tex.1984).

DRAUGHN, Justice. appeal

This presents the issue of wheth-

er the trial court grant had

motion for thirty days new more than judgment signed

after the under the

exception provided 306a(4) Rule

the Texas Rules of Civil Procedure. We

find the trial court had such

and order dismissal of appeal. LTD., APTS., GREEN Green OAKS a/k/a The trial signed court a default Ltd., Apartments, Oaks and Kenneth judgment against appellant July Wanamaker, Trustee, Appellants, Appellant 1984. did not receive written notice of August until Appellant 1984. filed its Motion for New CANNAN, Appellee. Morris August 31, 1984, Trial on which the trial granted on November 1984. The No. 04-83-00300-CV. appellant did not file therefore its Motion Texas, Appeals of Court of Trial thirty days New within as re Antonio. San quired 329b(a) by Rule of the Texas Rules of Civil Procedure. the trial June 1985. court properly determined that under Rule Rehearing Sept. Denied 1985. 306a(4) jurisdictional it had authority to rule on the motion. provides This rule party adversely

if a by judgment affected attorney

or his has not received notice or

acquired knowledge actual twenty days

within after the

signed, respect then party, to that

period for plenary power the court’s

grant begin a new trial shall on the date party attorney

that such or his received acquired knowledge

notice or actual

signing judgment, whichever oc appellant

curred first. re did not acquire knowledge

ceive notice or

signing days until more twenty than there

after, thirty day period filing begin

Motion for New Trial did not until it August

received notice on *2 DuBose, Dallas, appellants.

Eugene Zlotucha, King, Ronald B. Frederick R. Antonio, appellee. San CADENA, C.J., Before and BUTTS TIJERINA, JJ.

OPINION CADENA, Chief Justice. Ltd.,

Plaintiffs, Apartments, Oaks Green Wanamaker, Trustee, holders and Kenneth Apart- on the Green Oaks of a second lien Antonio, appeal from Building in ment San County district court a Bexar an order of defendant, dismissing their suit Cannan, first lien in of the federal courts were res Morris holder of the by plaintiffs controversy that the state court suit filed such concerns judgments his were collateral attacks on the efforts of defendant to foreclose prayed federal courts. Defendant the two lien. re- dissolution of the posted of fore- After defendant notices straining order. lien, announcing that closure of his first *3 hearing on the motion to dissolve held on the foreclosure sale would be nothing 4th, set for March but there is 1, 1983, tempo- was plaintiffs March hearing was in the record to indicate that rary injunction in the United States Bank- on such date. Court, held Chapter ruptcy which bank- ruptcy proceedings, by plaintiffs, instituted plaintiffs 4th filed their re- On March bankruptcy court re- pending. were dissolve, and on sponse to the motion to temporary restraining fused the to issue first plaintiffs March 10th filed their enjoining the March On order 1st sale. original petition they amended in which 28, 1983, February plaintiffs filed suit temporary referred to the issuance of the District the United States Court restraining order and the violation of such Texas, seeking Western District of to en- by holding order the foreclosure sale join the foreclosure sale. Later that same by de- purchase day plaintiffs state filed this suit alleged Plaintiffs further that de- fendant. seeking temporary district restrain- plaintiffs posses- from fendant had ousted ing temporary injunction order and a aimed alleging sion of the After that preventing proceed- at the defendant from it the foreclosure sale was void because sale, ing the foreclosure and on that with knowing was consummated violation temporary date the state court issued a restraining temporary order which restraining enjoining order defendant from served, prayed plaintiffs notice had been proceeding with the sale. The state court (1) declared the foreclosure sale be 8, 1983, designated March as date on void; (2) temporary in- the court issue a hearing plaintiffs’ application which the junction enjoining defendant from interfer- temporary injunction would be heard. attempt- ing plaintiffs’ with period ing a foreclosure sale for a to hold order, Despite restraining the trustee (3) tempo- days; declaring that the of 60 proceeded under the deed of trust previously issued rary restraining order sale and the sold to was defend- order; (4) declaring the was a valid ant on March 1st. March 3rd the Unit- On March 1st foreclosure sale void. plaintiffs’ ed District Court denied States signed 11th the trial application temporary restraining By for a or- order March der, plaintiffs’ cause of action. date in this court dismissed and on that defendant filed a recital that defend- temporary case his This order contained motion dissolve requested in restraining by ant “is entitled to the relief order issued the state court concerning plea bar.” February pleadings 28th. alleged At the time the order of dismissal Defendant’s motion to dissolve been signed, only pleading which had that the state court lacked be- to dis- was the motion pendency proceedings in filed defendant cause of the restraining temporary order bankruptcy court and of the suit for solve February 28th. issued on injunction District which had been United States filed had been plaintiffs’ prayers and the denial of No instrument requesting containing “plea in bar” or temporary restraining both of action.1 plaintiff’s cause alleged the actions dismissal suits. Defendant pleading defend- paragraphs in this pleading captioned one of the filed a "Defend- 1. Defendant alleged: asserts a Plea Original "Defendant further ant ant’s Answer to Plaintiffs Petition in Abate- prayer the alternative a Plea Pleadings” Bar and in which contained a Other However, was not instrument of action be dismissed. In ment....” cause only tions, possible grounds sug bearing intriguing style often such as gested by the record for the were “State v. One 1963 Pontiac Auto- dismissal mobile,” binding upon interests of pendency suit and persons thing. examples all Other application injunction in the federal admiralty proceedings are some cases and court, plus temporary district refusal of probate If courts. the action affects restraining orders both federal courts. particular persons interests of expressly Defendant’s motion to dissolve thing, it is said that the action is often invoked the doctrine res based rem, although such an action is common- proceedings. of the federal ly being “quasi referred to in rem.” An denying an order example of in Texas is our such an action order is not a final trespass try title. RE- See support judicata. and cannot of res (SECOND) STATEMENT CONFLICT OF order, interlocutory excep An with some p. LAWS applicable, finality tions not here lacks the *4 required for invocation of the doctrine of support Defendant no in cites cases Brouse, judicata. res Miers v. 153 Tex. his contention that the suit in federal court (1954). seeking injunctive 271 S.W.2d 419 relief an action in rem quasi in rem. motion, allegations although The in the support in made res personam An in is said to action attention are sufficient to call the court’s to be one which has for its involving the same the fact that suits cause person, distinguished from a against the pending in of action were the federal judgment against property to determine its is, perhaps, possible interpret courts. It to personam status. An action in is some allegations in motion as sufficient proceeding times defined as a to enforce support plea in personal rights obligations, to abatement based which action actions, previously pendency brought against person. of other filed 1 AM. are in other courts. JUR.2d Actions 39. Such definitions § value, guidance much of little or no and as pendency The of an action in federal defining in could furnished an action be involving parties courts the same is neither in rem personam as one which those in a state same issues as involved guidance quasi in rem. some nor proceeding is not a reason for abat court classify par can had from cases which be ing proceedings in the state where injunc- far as suits for ticular actions. As personam. in suit in the federal court is concerned, relief are it is well settled tive Tucker, 881, 885 v. 615 S.W.2d Williamson personam in and not injunction that an acts ref’d n.r. (Tex.Civ.App. writ — Dallas in rem. American Institute Real Es e.); Houston, University Byrnes v. Hawk, 436 S.W.2d 359 Appraisers tate v. (Tex.Civ.App. S.W.2d 815 [14th — Houston (Tex.Civ.App. Dist.] [14th — Houston n.r.e.). Defendant, ref’d writ Dist.] gener writ). keeping no This is in rule, disputing urges that it is without per- in equitable act al rule that remedies in inapplicable because federal 120 Tex. Wright, v. City sonam. Dallas in rem in this case is an action volved or. If the 36 S.W.2d in quasi rem. one proceeding in can action is “in Strictly speaking, an is difficult to personam, acts in it that against a directly proceeding proceeding rem” it is taken as a classify when such a per thing affects the interests of all in in rem. Since action and rem or thing. Examples personam, injunction is an action sons the world in federal for the forfeiture of the suit statutory proceedings are proceed abating the presents no reason for things of narcotics laws used violation The fact ings in state courts. Judgments in such ac- other laws. and 19th, signed. eight days of dismissal was after the order filed until March

AlP right way proceeding ceeding in this to filed federal case involved capaci- we resolve of whether to sell suit was an action or an first does the suit ty as trustee not transform rem. is cor- majority action to an in rem. R. injunction practice pro- injunction in its assessment rect McDonald, civil texas ceedings generally are an action considered (1981 ed.). rev. The fact that the 2.12—C § exceptions to personam, there are equitable indirectly decree will affect title case. applicable this rule which in this preclude to or an interest land does not injunctive sought relief in the first the characterization of the action as one Bankruptcy case filed United States en- personam, remedy where will be peti- filed in Court was connection with person. v. forced Dallas Cf. Bankruptcy modify existing tion to (1931); Wright, 120 Tex. only objective injunctive Plan. The prac McDonald, 1 R. texas civil stop relief the foreclosure (1981 rev.). Texas tice 1.07.3 § a lien on real specific have held courts that a suit for In this case the relief could not convey land is performance of contract to adjudicated have been a determina- without personam, despite a suit in the fact that parties' present to title tion of the interest (Ver TEX.REV.CIV.STAT.ANN. art. 2214 subject real estate. 1971) provides non that the decree itself Questions concerning the nature of the suit pass title operates any act to be without princi- are determined nature party against done whom plaintiff’s petition pal asserted Ross, is rendered. Banco Minero v. for the breach the relief thereof. Brown *5 522, (1915). Tex. 172 S.W. 711 Co., 607, 306 Television 157 Tex. Gulf before us involves 706, (1957). 708 The averments S.W.2d only the nature of proceedings the in the must read connection with fact federal courts. in prayer Whether the state suit for relief. Motor White v. Texas (Tex. Supply in 140 volved this case was in or in Car & 228 S.W. App.1921). An action for title Comm’n totally determining rem is irrelevant in realty by the possession of must be tested federal proceedings. may nature of the It in allegations petition of fact rather pointed out also be that since the fore they cast. by than which are form closure sale which defendant 264, 109 Sanderson, 130 Tex. Sanderson already place, federal courts had taken (Tex.Comm’n App.1937). 748 S.W.2d Further, proceedings federal were moot. Corpo supreme court Renwar Oil reas had refused to Lancaster, 311, 276 Tex. ration v. in sert its over the land here (1955), dis in a contract S.W.2d denying plaintiff’s by request volved royalties pute over oil stated: stay Bankruptcy the automatic under as between Where reinstated. Code be survey either parties, must locate a the suits for relief ground (by surveying data either did power federal court not affect the both) in a estoppel or to determine order suit, plaintiff’s the state court to entertain due, royalty dispute as to the amount of dismissing erred suit. the trial court such party is must determine one location, the deny is re- to estopped the trial court certain essentially recovery of for the the cause one versed and is remanded to quiet subdivision land and to title within case court with instructions to restore the as one though 14 Art. even cast a pending to its docket as suit. (Emphasis declaratory judgment. for added.) TIJERINA, Justice, dissenting. at 776. Id. 276 S.W.2d dis- respectfully I dissent. The area of concep- agreement way arises from the we case ultimate issue In the instant foreclose pro- appellee had to original and characterize the tualize whether subject put allegations the lien on the real estate. This in issue plead- requires inquire issue the trial court to into ings therein. 1 AM.JUR.2d Actions § parties possession claims to title and n. 20 Supreme The United States property. Appellants peti- real their Court defined actions in rem in Bankruptcy tion before the United States Alderson, Freeman v. 119 U.S. 7 S.Ct. prayed: argue “Movant would (1886), 30 L.Ed. stating: this court that it grossly would be unfair is, however, There large class of cases unjust Guaranty Savings Federal & rem, strictly which are not actions in assigns Loan Association and/or its to be frequently spoken are of as actions proceed allowed to with its foreclosure rem, because, though brought against proceedings plead- at this time.” fn this persons, they only subject certain seek to ing appellants bankrupt- conceded that the property persons of those to the dis- cy court had exercised over charge of are the claims asserted. Such subject property by permit- an order property actions which of nonresidents ting property them to sell the to Green discharge is attached and held problem Oaks Associates. Their was that debts due them to citizens of the prospective buyer get could not State, and actions enforcement necessary financing. Bankrupt- After the Indeed, mortgages and other liens. of all cy sought, appel- Court denied the relief proceedings having their sole lants filed a suit the United States Dis- disposition the sale or other pleaded trict Court and as follows: defendant; satisfy property requesting Plaintiff is this court issue a plaintiff, the demands of the restraining general way designated. (Emphasis thus proceed- defendant Morris Cannan from ing with the sale on certain foreclosure debtor, property fully owned more bar, appellants’ pleading In the case at described the attached exhibit ‘B’. asserts a claim to title and the real at issue. descrip- Exhibit “B” is a metes and bounds tion of the real at issue. This sense, proceeding a strict rem [I]n application Subsequently was also denied. against property, one directly taken *6 appellants filed the cause of action before disposition object and has its of essentially prayed us and title property, without reference to the stop the relief to foreclosure sale of the claimants; larger of individual but in a property, stop any and to action which sense, general more the terms are and peaceful possession. would disturb their parties, applied to actions between where petition Attached to this was a metes and object dispose is to reach and the direct description subject property. bounds property.... of determined, question after con- The to be (3d 938 ed. BLACK’S LAW DICTIONARY whole, sidering appellants’ pleading Texas, 1933). University In Morris v. of principal right the nature of the whether 169, (Tex.Civ.App.— 337 172-73 S.W.2d essentially of asserted affected the status 1960) 162 grounds, Austin rev’d on other “Ordinarily plain- the nature of a the res. court, (1961), Tex. 344 S.W.2d 426 may determined tiffs cause of action quoting from Kline v. Burke Construction prayer for relief courts are not 79, 80, Co., 226, 227, 43 S.Ct. 67 260 U.S. determining ques- limited thereto (1922), L.Ed. 226 reiterated the undisturbed Drilling Lacy, tion.” v. W.B.Johnson Co. regard: rule in this (Tex.Civ.App . —East question controversy ... a over mere 1960, writ). proceeding quasi A land no involve personal liability does not object the direct is to reach in rem when of thing, and or control adjudicate the title or dispose and of or to brought such a lia- to enforce parties, action owned status impair or defeat bility does not tend to duly claimed them and of some interest dissolve court which jurisdiction original peti- pend- cause is the answer to prior action for the same jurisdiction ing. did attack tion n rule, n therefore, [*] [*] the court first [*] sjc based on federal court. prior proceed as acquiring jurisdictions shall the nature of Accordingly, suit, from a court of serted, without interference direct right and of jurisdiction prop is a rule of other essentially affected the status necessity, and where the upon based original law suit filed erty at issue. not necessity, potential, does actual quasi action constituted an federal court apply. exist the rule does not had as rem necessity exist in actions in rem does of the res. See Wilson sumed personam, and does not exist F.2d Insurance v. Alliance Life involving personal liabili- Therefore, Cir.1939). 150, 152(5th applies in the former ty only, the rule correctly without court was apply (Empha- in the latter. does not hut plaintiffs’ cause of action. dismissed sis af court should be of the trial firmed. A suit to foreclose a mort- Id. at 172-173.1 an action in rem.

gage is considered Hamilton, 150 S.W.2d McCorkle v.

See (Tex.Civ.App. Worth — Fort Carlisle, 4 ref’d). In Roberts v.

writ (Tex.Civ.App.

S.W.2d — Dallas dism’d), the court determined writ

that a suit to foreclose a lien on rem, saying:

was an action that, opinion though Min- We are of MILLS, Appellant, Bobby Hale personally nie Belle Plummer has been state, within the served Texas, Appellee. The STATE could not been rendered have A her. based No. 05-84-00931-CR. by defendant proceedings as instituted Texas, Appeals of performance of require could not Dallas. the hands of Minnie Belle anything at any of her Plummer that would invade July adjudi- rights, but could individual 1, 1985. Aug. Rehearing Denied against the rights of defendant cate the *7 deceased, Osborne, repre- estate of F.G. Belle Plummer by the said Minnie

sented executrix, establishing defendant’s de- estate, against said

mand as a claim statutory here lien

foreclosing estate_ (Em- said phasis concludes that majority request dismis- file a in bar

did not cause of action.

sal of motion to clearly shows that record only. liability Thus, ac- clear that court makes the Morris personal questions of personam involve tions