In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-157 CV
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IN RE KENNETH D. ROGERS, ANDREW W. DUNN, PAT H. COONE,
BETTY S. COONE, WAYNE D. BUTCHEE, CLINT L. HINES,
SYBIL K. JENKINS, TERESA VIATOR, KYLE ARMITAGE,
PAMELA A. PARKER, NATALIE HYDE, AND
ORANGE SAVINGS BANK OF TEXAS, SSB
Kenneth D. Rogers, Andrew W. Dunn, Pat H. Coone, Betty S. Coone, Wayne D. Butchee, Clint L. Hines, Sybil K. Jenkins, Teresa Viator, Kyle Armitage, Pamela A. Parker, Natalie Hyde, and Orange Savings Bank of Texas, SSB, petition the Court for a writ of mandamus to compel the trial court to vacate its interlocutory order denying the relators' motion for summary judgment and enter a final summary judgment for the relators on all claims asserted against them by Joe E. Penland, Sr. (1)
Rogers, Dunn, Coone, Coone, Butchee, Hines, and Jenkins are directors of Mauriceville National Bank. These directors sued Penland in federal district court over an alleged check kiting scheme involving Mauriceville National Bank and used car lot operations owned by Penland and Robert L. McDorman. McDorman is currently serving a federal sentence for bank fraud. Penland filed a counterclaim, alleging the individual relators acted in concert with McDorman to commit common law fraud and violations of the Racketeer Influenced Corrupt Organizations Act. The federal district court dismissed Penland's counterclaim with prejudice in an interlocutory order. Penland filed a motion for leave to amend, which the federal court denied, and contemporaneously filed this suit in state court. Certain of the relators removed the suit to federal court. The federal court remanded without considering the relators' motion to dismiss. The relators then moved for summary judgment in the state litigation on grounds that Penland's claims are barred by res judicata. The trial court denied the motion.
Assuming without deciding that the trial court erred in denying the motion for summary judgment, we hold that the relators failed to establish that appeal will not be an adequate remedy. Supreme Court precedent recognizes appeal as the appropriate remedy for the trial court's failure to recognize the preclusive effect of a prior judgment. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). Relators argue this case presents unique circumstances justifying extraordinary relief for a complaint historically not subject to mandamus. See In re Prudential Ins. Co. of America, 148 S.W.3d 124, 136-37 (Tex. 2004). In this case, we are bound by the Supreme Court's decision in Holloway, wherein the Supreme Court held that mandamus is not the appropriate vehicle to resolve a claim of res judicata. 767 S.W.2d at 684. The relators' petition for writ of mandamus is denied.
WRIT DENIED.
PER CURIAM
Submitted on May 4, 2006
Opinion Delivered June 1, 2006
Before Gaultney, Kreger, and Horton, JJ.
1. The relators also complain of the appointment of a special master for discovery.
After the relators filed this petition, the trial court granted the real party in interest's
motion to withdraw its motion for appointment of a master. Because the issue is moot, we
do not address the relators' complaint regarding the appointment of a special master.