*1 CARVER, WHITHAM аnd GUIL- LOT, JJ. granting from the motion to a counterclaim under the dismiss Declaratory Judgments Ap- Act. pellant alleges the trial court erred allowing appellant opportunity tо state a by amending pleadings. We with disagree appellant and affirm.
Nancy Willingham
personal
P.
filed a
in
jury
County against
suit in Dallas
The Hair
Laboratories,
Jammer and KMS Research
Inc. alleging
she had been harmed
product.
certain hair
The Hair Jammer’s
plea
privilege
was sustained
portion of the action was
transferred
KMS,
County.
Collin
being held to answer
Dallas,
filed
counterclaim under the
Declaratory Judgments
Tex.
Rev.Civ.Stat.Ann. art. 2524-1
1965), asking for a determination as to
whether it
Will-
was liable
ingham
against
then took a non-suit
KMS
and filed a “Motion to Dismiss” KMS’coun
terclaim on the
KMS failed
state a cause of action. The motion to
granted
appeals.
dismiss was
and KMS
points
of error are relаt
ed. The first is that the trial court should
given
opportunity
to amend its
counterclaim in order to set forth a cause of
that, given
oppor-
action. The
second
*2
interpreted
Act shall be
and con-
pleaded
have in fact
a
tunity, KMS could
pur-
general
Declara-
to effectuate its
cause of action under
strued as
pass
We need not
tory Judgments Act.
uniform the law of those
pose to make
harmonize,
it,
if
point,
the first
since we hold that even
which enact
and to
States
amend,
to
no
permittеd
KMS had been
laws and
possible,
as far as
with federal
declaratory
relief
proper
declaratory
subject
regulations on
have
stated.
could
been
judgment and decrees.
intent,
Thus,
legislative
our deci-
by express
counterclaim seeks a determination
conformity with other
injury alleged by
for the
must be made in
sion
outset,
jurisdictions.
At the
we admit
language
Declaratory Judg-
unequivocal. While
cases are
federal
appear
enough
ments
broad
to
Act does
declaratory
refusing to enter а
noting that
non-liability to
encompass a declaration of
court,
trial
discretionary with the
decree is
alleged
provides
tortfeasor.
Section 1
litigation of
every case found holds that
the courts:
defendant
in a tort
potential
a
liability by
[Sjhall
rights, sta-
declaratory
use of
improper
action is an
tus,
whether or
and other
legislаtion.
See
judgment
not further relief is or could be claimed.
Brothers,
—Beaumont no Only in 238 P.2d held that the Act Civil determining the proper was a mode for the use (1970), a court allowed state forge operation to continue in litigate judgment action to declaratory the face of threatened nuisance lawsuits. Ditzler, however, the need liability. In tort Thompson, In Traffic Bureau v. Southern pecu- and the prevent multiple lawsuits to (Tex.Civ.App. Antonio S.W.2d — San to have parties appear positions liar n.r.e.) writ ref’d Antonio San overriding considerations. parties Court the use of the Act denied Thus, express intention following the as to whether who a declaration laws of Texas the Act to harmonize the handling constituted certain claims methods federal and the with those other States Emmco Insurance barratry. Finally, laws, improperly at- we hold that KMS Burrows, (Tex. Company v. S.W.2d Willing- tempted litigate writ), Tyler Civ.App. Tyler— judgment. a by seeking ham De court also denied use of the Uniform a cause could not have stated Therefore it there wаs a claratory Judgments where Act Willingham’s the Act and of action under or not purely question factual of whether properly denied. motion to dismiss was had acted in “consort” to defendants note. suspend payments interest a Furthermore, entertaining of rests with we positive guidance, more a Presi- of the trial court. provides: of the Act sound discretion observe that Section 15 declaratory determination of non- Vance, (D.C.Cir.1980). concern a dent v. We find prospective no abuse discretion. defend liability initiated permit merely ant. These cases refused
Affirmed. compel potential his claim at a time and CARVER, Justice, dissenting. alleged tort-feasor. view, respectfully my dissent. actual, Here, concerned with an we are Act is a *3 brought into a suit prospective, proper vehicle for a defendant’s counter- injured by the at a time and forum non-liability claim a declaration of “pro the Consequently, party plaintiff. to a particular tort claim as asserted in a injured per safeguards” cedural accorded plaintiff’s Consequently, suit on file. sons, plaintiffs, Cunningham, which yet not would hold that the trial court erred Featherstone, Frito-Lay, and Sun dismissing ground the counterclaim on the by are violated the protect, it failed to state a cause of action. relief filed af counter-claim scope Declaratory The procedural safеguards” have been ter those Judgment Act is stated as follows: injured party’s suit fully enjoyed and the respective Courts of record within their filed. actually jurisdictions shall have status, rights, by and the ma- remaining other case relied whether or not further relief is or could jority is Ennis v.
be claimed. No action or sup- (1954), which likewise fails to P.2d 435 that a Ennis, the Idaho port positiоn. their declaratory judgment judg- held that a default Supreme Court may be either af- process. for lack of service of ment was void negative firmative or in form and the issuе specifically The court noted that and such declarations shall have the force them. Accord- was not before and effect of a final applica- of the ingly, the courts discussion the de- bility Tex.Rev.Civ.Stat.Ann., Sec. dicta, non-liability merely termination of nothing There is the to the ma- precedential and of value to face of the prevent statute that would the opinion. hearing jority’s court from counterclaim.
While the majority admits the above is event, Cunningham, reject I would any true, they procеed “interpret” scope Featherstone, Oil, and Ennis Sun of the based on several federal cases Borchard, join view set out in and in the case, and one Idaho preclude so as to (2d.ed) which Declaratory Judgments determination of non-liability. states: The majority primarily relies on four fed pleasure of awaiting “. . . Instead of cases, Bros., eral Inc. v. bringing his the accuser or claimant Circ.), adjudication, legisla- claim to demand or 395 U.S. have found that social tors and courts Frito-Lay F.Supp. judi- by taking under peace promoted 771, (N.D.Miss.1974); Steamship Co. cognizance the desire of cial 830, (D.Ore. F.Supp. jeopardy to be relieved of charged or in 1965); Oil Co. v. Transcontinental the unсer- peril, insecurity and Co., 280, (E.D.Pa. F.Supp. claim, actual tainty by unjust created aff’d., 1952), 1953), Circ. potential.” proposition to which are ascribed the that a Id. at 645. See defеndant’s cross-action in a tort case not seek a determination of by noted, the case before way declaratory judgment. already None As I have brought by a thеse cases so hold. All of cited an action their cases us does not concern potential defendant anticipate
party’s claim a declaratory judgment
but, instead, concerns counterclaim
brought by an actual defendant. Conse-
quently, danger, there is no as seen in thе upon by majority,
authorities relied
depriving injured party
choose the time and forum to one’s
claim. Nancy Willingham chose time forum, now,
and since her choice of improvident, seems she has taken a
non-suit and secured the dismissal KMS’
counterclaim. To affirm this case is to
nullify the plain right granted Judgment
Declaratory Act to conclude the
specific peril Nancy Willingham’s stated in
petition, and in the forum she selected.
In view legislative expression con-
tained within the
Act that liberally the act be construed to
serve its purpose, remedial the dismissal
should be reversed and KMS’ counterclaim
tried. Bruder, Dallas,
Melvyn appellant. for Weaver, Atty., R. Kristin Asst. Dist. Dal- las, GUITTARD, J., C. and WHIT- GUILLOT,
HAM and JJ. FULLYLOVE, Jr., Appellant,
Ira This is an from a conviction of Tеxas, Appellee. The STATE of evading appellant arrest for which was sen- No. 05-81-00364-CR. days jail to 180 and fined one tenced thousand dollars. We find no error and affirm. Appellаnt that the evidence is in- asserts support sufficient the conviction in that (1) recog- appellant fails to show: (2) policemen, nized the officers police attempting a lawful arrest. were police offi- The evidence showed that dispatched plumbing compa- cers to a were sus- ny building night investigate at picious persons. They arrived in uniform policeman squad and in a marked car. One building had a found that the door large apparently been recent- hole that had cop- made. He also discovered a roll of ly