Ex parte Ernest J. BROWNE, Sr., et al., 543 S.W.2d 82

POPE, Justice. Ernest J. Browne, Sr. and Robert Thomas were held in contempt for the violation of an injunction order of the 60th Judicial District Court of Jefferson County. Each was fined $100.00 by the special judge assigned to hear the contempt complaint and upon their refusal to pay the fines, they were taken into custody by the sheriff. This court ordered their release pending our decision in this habeas corpus proceeding. The questions presented are whether Mr. Browne and Mr.

Thomas in fact violated the order of the court, whether the order itself was a void one, and whether the rela-tors were accorded due process. We hold that Mr. Browne violated the order, that it was not void, and he was accorded due process. There was no proof that Mr. Thomas violated the order. On April 18, 1975, Gloria Austin filed a suit in the 60th Judicial District Court against Robert Thomas. She alleged that she had employed Thomas as her attorney in a divorce action but that the contract should be canceled and she should be awarded damages for breach of a fiduciary relationship.

That cause was set for trial on October 6, 1975. On September 5, 1975, John Paul Crain and A. H. Crain filed a separate suit in the 58th Judicial District Court naming as defendants, Gloria Austin, her husband H. E. Austin, Robert Thomas, H. E. Investments and the Texas Bank of Beaumont. That was an interpleader suit by which the Crains sought to tender into court the sum of money they owed on a note secured by property in which the Austins and others had some interest. As security for the payment of his fee in the divorce ease, Thomas had taken a collateral assignment of the note.

The purpose of the Crain suit was to assure the timely payment of their obligation so they would be protected against the conflicting claims to the funds which might be asserted by the Austins, Thomas, and the other defendants. They also asked for an order to invest the funds properly pending the litigation. On September 18,1975, Browne, as attorney for Thomas, filed in the Crain case that was pending in the 58th District Court a motion to consolidate the prior Austin case that was pending in the 60th Judicial District Court. The motion was set for hearing on September 30.

At that time neither Gloria Austin nor Thomas had yet been served with process as defendants in the Crain case which had been filed after the Austin suit. On September 26, Gloria Austin filed in the 60th District Court her petition for injunction seeking to prohibit Thomas from taking action to consolidate the Austin case with the Crain case. On September 29, the judge of the 60th District Court granted an injunction in the Austin case which prohibited Thomas from: (

a) taking any steps whatsoever to consolidate the captioned cause into Cause No. A-102,383 in the 58th District Court of Jefferson County, Texas (

b) taking any step whatsoever to oust this Court of its lawful jurisdiction in the cause of Austin v. Thomas, No. B-101,640. On September 29, Thomas gave notice of appeal and filed his appeal bond, but he did not file the record in the court of civil appeals until October 20. On September 30, relator Browne appeared at the consolidation hearing and explained to the judge of the 58th District Court that his client, Mr. Thomas, had been enjoined.

The special judge who heard this contempt matter found as a fact, however, that relator Browne did something more; he voiced his views and opinions about the merits of the motion to consolidate and told the court that the motion to consolidate was a good one after which the judge of the 58th District Court ordered the consolidation of the Austin case with the Crain case. Thereafter all parties agreed to a settlement of both suits. The Crain case was settled and judgment was rendered by the 58th District Court, but the Austin case remained pending on the docket of the 60th District Court.

In January these contempt proceedings were instituted upon the complaint that Browne and Thomas had violated the order. The record in this contempt proceeding supports the trial judge’s finding that relator Browne violated the order against taking steps to consolidate the two cases or to oust the 60th Judicial District Court of its prior jurisdiction over the first-filed cause. Relator Browne was bound by the injunction as the attorney for Mr. Thomas. Rule 683. There was no proof, however, that Thomas himself did anything to violate the order.

He did not appear or participate in the hearing; he gave no instructions to his attorney. The injunction order was not a void one. The 60th Judicial District’s jurisdiction over the Austin case ordinarily could have been protected by filing a plea to abate any subsequently filed suit between the same parties concerning the same subject matter. Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956); Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951 (1935); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926).

Our decision in Lancaster, as well as the several precedents discussed in that case, show, however, that a court may protect its jurisdiction by injunction when there is no adequate remedy available such as a plea to abate the second-filed case and when special circumstances justify the injunction. 6 Texas Practice, Remedies, § 75 at p. 119 (1973). It is our opinion that those circumstances exist in this case. The Austin case had been on file in the 60th Judicial District since April, 1975, some four and one-half months before the Crain case was filed.

Extensive discovery proceedings prior to trial had been completed in the Austin case, and it was set for trial for October 6. The Austin case was one in which Gloria Austin was the only plaintiff and Thomas was the only defendant. It was a suit grounded upon breach of a fiduciary relationship and sought the cancellation of a contract and damages. The Crain case, on the other hand, was an inter-pleader action. There was no issuance of citation in that case until after the hearing on the motion to consolidate. Mrs.

Austin was dismissed from the Crain case as a party prior to the consolidation hearing, so at that time, she was the only plaintiff in the action pending in the 60th District Court and she was not a party to the inter-pleader action pending in the 58th Judicial District. Robert Thomas was the only party common to both actions. The subject matter in the two actions was wholly different, the parties were different and the remedies were different, so a plea in abatement by reason of a prior pending action would not lie. See Gratehouse v. Gratehouse, 417 S.W.2d 592 (Tex.Civ.App.1967, no writ).

The purpose of the injunction by the 60th Judicial District Court was to avoid the disruption of the setting and trial of the Austin case. The order in no way interfered with the trial of the Crain case, since the injunction was addressed to Thomas and not to the 58th District Court. See 43 C.J.S. Injunctions § 50. We hold that the injunction by the first court was not a void act because the first court had the power to protect its jurisdiction from disruption by a later-filed suit between different parties, concerning different subject matter. Art. 1911a, Tex.Rev.Stat.Ann. (Supp.1975).

To excuse relator Browne’s violation of the order, he had to prove that the order was absolutely void, not that it was merely invalid. Ex parte Kimberlin, 126 Tex. 60, 86 S.W.2d 717 (1935); Ex parte Olson, 111 Tex. 601, 243 S.W. 773 (1922); Ex parte Smith, 110 Tex. 55, 214 S.W. 320 (1919). In our opinion, relator has not shown that the order was void. Relator Browne makes the further contention that he was denied due process, because the injunctive order was vague and uncertain. We think otherwise.

In Ex parte Slavin, 412 S.W.2d 43 (Tex.1967), we wrote that “the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him.” The order, which enjoined “taking any steps whatsoever to consolidate the captioned cause into” the 58th District Court clearly prohibited relator Browne from making arguments before the 58th District Court that the motion to consolidate should be granted.

Relator Browne makes the further argument that he was denied due process since Rule 692 limits contempt actions to violations of orders in pending cases and this case was settled long prior to the commencement of the contempt action. Mootness of the merits does not wash away one’s prior contemptuous conduct toward the court. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 451-452, 31 S.Ct. 492, 55 L.Ed. 797 (1911). The power to punish for contempt is an inherent power of a court. It is an essential element of judicial independence and authority.

As expressed in Gompers, supra, “If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent . .” Gompers, supra, was a case in which there was a contemptuous act followed by a settlement of the entire cause. The Supreme Court stated: When the main case was settled, every proceeding which was dependent on it, or a part of it, was also necessarily settled—■ of course, without prejudice to the power and right of the court to punish for contempt by proper proceedings. Worden v.

Searls, 121 U.S. [14] 27, 7 S.Ct. 814, 30 L.Ed. [853] 858. If this had been a separate and independent proceeding at law for criminal contempt, to vindicate the authority of the court, with the public on one side and the defendants on the other, it could not, in any way, have been affected by any settlement which the parties to the equity cause made in their private litigation. Finally, we find no merit in rela-tors’ contention that the trial court lost jurisdiction to proceed by way of contempt because the appeal from the trial court ousted the trial court of jurisdiction over the contempt.

The chronology of relevant events was: On September 29, the 60th Judicial District Court made its injunction order. On that same date Thomas gave notice of appeal and filed his appeal bond. On September 30, relator Browne did the acts which the trial court found were contemptuous. On October 20, Thomas filed the transcript with the court of civil appeals, and on November 4, that court dismissed the appeal upon motion of appellant, Thomas.

In Ex parte Werblud, 536 S.W.2d 542 (Tex.1976), we held that the court of civil appeals is the one charged with the trial and disposition of contempt proceedings for violations of orders during an appeal to that court. This court has also held, however, that jurisdiction over interlocutory orders was not vested in the court of civil appeals until (

a) an appeal bond was filed and (

b) the record was timely filed. Houston Compressed Steel Corp. v. State, 456 S.W.2d 768, 772-773 (Tex.Civ.App.1970, no writ); Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956 (1943); Rule 385, Tex.R. Civ.P. The trial court had jurisdiction of this case when the injunction order was violated on September 30; it had jurisdiction after the appeal was dismissed and the contempt action was tried. Relator Ernest J. Browne, Sr. is remanded to the custody of the Sheriff of Jefferson County. It is ordered that the order holding relator Robert Thomas in contempt be set aside and that he be discharged.

Dissenting Opinion by DANIEL, J., joined by McGEE and DENTON, JJ. . The record made at the contempt hearing shows that Mr. Browne appeared at the consolidation hearing and argued: “Now, in my personal opinion, I think that the order is void. I don’t think where one court sets something for a hearing, I don’t think another court, unless it’s the appellate court, can in effect enjoin that hearing— Your Honor, I owe a duty to my client, Robert Thomas to not be doing anything to place him in jeopardy.

I think, as far as the power of the Court, my personal opinion, I think that everybody knows the law, the courts can consolidate cases on their own motion. I can point out similarities and so forth, instances, and so forth, but I don’t want to do anything that would place my client in jeopardy, Your Honor or being held in contempt of court because he comes down here to this court to urge a motion that he has filed in this court in good faith, and this court has set it for a hearing, in good faith, and I don’t know of anybody that has filed any objections to the consolidation.

It’s my understanding that they are all in favor of the consolidation, except maybe Mr. Keith’s client.” In answer to a question from the judge about the applicability of Rule 174(

a) to the consolidation question, Mr. Browne responded: “ . . . I have to agree that is the Rule, and I think it’s applicable, but I’ll say to the Court I do not want to be in position of endangering my client, Robert Thomas, because he is enjoined from urging his motion to consolidate. No one has filed any objections and this is a court of record and if anybody is going to object to it, they should file a plea and there haven’t been any filed.

So I think it should be taken as true, and it should be entered, and I don’t want to take the position of my client violating Judge Combs’ order.” There was then extended colloquy between the court and counsel for Mrs. Austin.

This included discussions about Rule 174 concerning consolidations, the posture of the parties in the two suits which disclosed that Thomas was the only party common to both actions at the time of the consolidation hearing, the local rule which called for consolidations to be made in the first-filed cause instead of the last-filed one, Rule 330(e), Rule 43 concerning interpleaders, cases construing the interpleader rule. At the conclusion of that discussion, counsel for Mrs. Austin stated that Mr.

Browne’s presentation and discussion of the motion to consolidate “constitutes a direct violation of the injunction that was issued yesterday.” To that comment, Mr. Browne responded, “You mean by discussing the law?”