Finis Welch v. Faye M. Monroe, Gayle E. Tittle, and David Free ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00013-CV

Finis Welch,

                                                                      Appellant

 v.

Faye M. Monroe,

Gayle E. Tittle, and David Free,

                                                                      Appellees

From the 87th District Court

Leon County, Texas

Trial Court # 6254-B

MEMORANDUM Opinion

        Plaintiff Finis Welch's case was abated because the trial court believed he lacked standing.  After some time, Welch's case was dismissed for want of prosecution. Because we find that the abatement was in error and effectively blocked Welch from prosecuting his case, we reverse the dismissal of the trial court.

BACKGROUND

          In July of 1994, David Free, a county surveyor, asked H. H. Salter to grant two easements to adjoining landowner Faye Monroe. Salter agreed.  A month later, Monroe conveyed her property and the easements to Gayle Tittle.  After Salter died, his daughter, Sandra Murray, sought to set aside the easements claiming that they were procured by fraud based upon Salter's mental incapacity at the time he executed the easements.  Murray, as executor of Salter's estate, sued the Appellees on April 21, 1995.

          While the suit was pending, Murray sold the property burdened by the easements to Finis Welch.  Subsequently, Appellees filed a plea in abatement claiming that Murray lacked standing to proceed with the lawsuit because she no longer owned the property.  The trial court granted the plea and abated the case.

          In an effort to reinstate the case, Murray assigned the interest in the cause of action to Welch who then filed a petition in the lawsuit as Murray's successor-in-interest.  Appellees again filed a plea in abatement claiming that because the trial court abated Murray's case previous to the assignment to Welch, she had no cause of action to assign, and therefore, Welch lacked standing as well.  The trial court granted the plea and abated Welch's case.

          After a period of time in which there was no further action in the case, the trial court dismissed the case for want of prosecution.  Welch appealed, and we reversed the trial court's dismissal because Welch had not been given notice or a hearing before the case was dismissed.    Less than six months after our mandate to the trial court, Appellees filed a motion to dismiss for want of prosecution.  The next day, Welch filed a motion for partial summary judgment seeking to place before the trial court the issue of his standing.  The trial court denied Welch's motion for partial summary judgment and dismissed the case for want of prosecution.

          Welch argues that the trial court erred in (1) dismissing the case for want of prosecution and (2) denying his motion for partial summary judgment regarding his standing in the suit.

STANDING

          Welch argues in his second issue that the court erred in denying his motion for partial summary judgment concerning the issue of standing.  Standing is a necessary component of subject matter jurisdiction and involves the court's power to hear a case.  McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 231 (Tex. 2001); Walston v. Lockhart, 62 S.W.3d 257, 259 (Tex. App.—Waco 2001, pet. denied).  A question of subject matter jurisdiction is fundamental and may be raised at any time. See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003); Walston, 63 S.W.3d at 259.  Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review.  See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Therefore, we will review the court's determination of standing de novo.

          The Appellees argue that because the court abated Murray's cause of action due to her lack of standing, she no longer possessed a cause of action to assign to Welch.[1]  Therefore, because Appellees argue that Welch's standing is directly dependant on the resolution of the question of Murray's standing, we will first review Murray's standing.

Murray's Standing

           A cause of action for injury to real property accrues when the injury is committed.  Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex. 1984); Exxon Corp. v. Pluff, 94 S.W.3d 22, 26-27 (Tex. App.—Tyler 2002, pet. denied).  The right to sue for the injury is a personal right that belongs to the person who owns the property at the time of the injury.  Pluff, 94 S.W.3d at 27; Abbott v. City of Princeton, 721 S.W.2d 872, 875 (Tex. App.—Dallas 1986, writ ref'd n.r.e.).  Because it is a personal right, the right does not pass to a subsequent purchaser of the property, i.e., the right does not run with the land, unless there is an express assignment of the cause of action to the subsequent purchaser.  Pluff, 94 S.W.3d at 27; Abbott, 721 S.W.2d at 875.  Therefore, when Murray sold the property burdened by the easements to Welch, she still retained the cause of action as executor of Salter's estate and as such had standing to continue the lawsuit.

Welch's Standing

          Despite the abatement, Murray attempted to reinstate the case by assigning the cause of action to Welch, the current property owner.  However, Welch must prove that he is entitled to such standing.  To recover on an assigned cause of action, the party claiming the assigned rights must prove (1) a cause of action existed that was capable of assignment and (2) the cause was in fact assigned to the party seeking recovery. Ceramic Tile Intl. Inc. v. Balusek, 137 S.W.3d 722, 724 (Tex. App.—San Antonio 2004, no pet.); Delaney v. Davis, 81 S.W.3d 445, 448-49 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Texas Farmers Ins. Co. v. Gerbes By and Through Griffin Chiropractic Clinic, 880 S.W.2d 215, 217 (Tex. App.—Fort Worth 1994, writ denied).

          A suit to set aside a deed is not a suit to recover real estate, but is a suit of a personal action.  Jansen v. Fitzpatrick, 14 S.W.3d 426, 432 (Tex. App.—Houston [14th Dist.] 2000, no pet.); McMeens v. Pease, 878 S.W.2d 185, 190 (Tex. App.—Corpus Christi 1994, writ denied). It is considered a chose in action which is defined as "a personal right not reduced into possession, but recoverable by suit at law."  Vinson & Elkins v. Moran, 946 S.W.2d 381, 389-390 (Tex. App.—Houston [14th Dist.] 1997, writ dism'd by agr.); see also Jansen, 14 S.W.3d at 432.  A chose in action is assignable in all but five instances, none of which apply in this case.[2]  Therefore, Murray's cause of action through her position as executor of Salter's estate is assignable.

          Also, the record shows that the cause of action was transferred to Welch under section 12.014 of the Texas Property Code.

          (a) A judgment or part of a judgment of a court of record or an interest in a cause of action on which suit has been filed may be sold, regardless of whether the judgment or cause of action is assignable in law or equity, if the transfer is in writing.

          (b) A transfer under this section may be filed with the papers of the suit if the transfer is acknowledged or sworn to in the form and manner required by law for acknowledgement or swearing of deeds.

Tex. Prop. Code Ann. § 12.014 (Vernon Supp. 2004).

          On July 14, 1997, Welch filed an unacknowledged "Assignment of Cause of Action" executed by Murray as executor of Salter's estate that assigned to Welch all her rights to pursue the lawsuit but made no mention of consideration.  Also, Welch filed a first amended petition as a plaintiff claiming that he was the successor-in-interest to Murray, executor of the estate of Salter. Apparently realizing his mistake, on July 15, Welch filed an acknowledged "Assignment of Claim" in full compliance with the property code, stating that it was executed with consideration.

          Murray's cause of action was assignable, and Welch legally obtained that assignment.  Delaney, 81 S.W.3d at 448-49.  Therefore, Welch has standing before this court, and the trial court erred in granting Appellees' second plea in abatement and in denying Welch's motion for partial summary judgment.  Accordingly, we sustain Welch's second issue.

DISMISSAL FOR WANT OF PROSECUTION

          Welch argues in his first issue that the trial court erred by dismissing his case for want of prosecution because the granting of the abatement stayed the case, precluding him from prosecuting it.  The procedural history of the case is as follows:

§ April 21, 1995 - Murray sued Appellees

§ May 1995 - July 1996 - Discovery

§ December 19, 1996 - Murray's first request for a trial date.  Trial was set for February 3, 1997.

§ January 23, 1997 - Appellee Tittle moved for continuance.

§ February 27, 1997 - Murray's second request for a trial date.  Trial was set for May 5, 1997.

§ March 17, 1997 - District clerk cancelled trial setting.

§ March 21, 1997 - Murray's third request for a trial date.  Trial was set for July 7, 1997.

§ June 2, 1997 - Appellee Tittle filed a motion to abate.

§ June 16, 1997 - Trial court granted motion to abate.

§ July 14, 1997 - Welch filed "Assignment of Cause of Action" (although not acknowledged), his first amended petition, and a motion to reinstate.

§ July 16, 1997 - Welch filed an acknowledged "Assignment of Claim."

§ August 1997 - Appellees Monroe and Free filed motions to abate.

§ January 23, 1998 - Welch requested a hearing on his motion to reinstate.

§ March 2, 1998 - Welch's second request for a hearing on his motion to reinstate.

§ March 20, 1998 - Trial court granted Appellees motion to abate. 

§ July 10, 2000 - Trial court sends notice of dismissal docket

§ August 10, 2000 - Welch filed a motion to reinstate.

§ September 6, 2000 - Trial court dismissed the case

§ September 18, 2000 - Welch filed a motion for new trial

§ October 6, 2000 - Welch filed his notice of appeal.

§ February 6, 2002 - This Court reversed the dismissal for failure to give notice and a hearing.

§ March 28, 2002 - Welch files notice of appearance of co-counsel.

§ April 17, 2002 - Welch files second amended petition.

§ June 6, 2002 - Mandate to the trial court from this Court giving it jurisdiction.

§ December 2, 2002 - Appellees file motion to dismiss

§ December 3, 2002 - Welch files motion for partial summary judgment.

§ January 3, 2003 - Trial court denies Welch's motion for partial summary judgment and dismisses the case.

§ January 15, 2003 - Welch files notice of appeal.

          A trial court’s power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the trial court’s inherent authority.  Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Steward v. Colonial Cas. Ins. Co., 143 S.W.3d 161, 163-64 (Tex. App.—Waco 2004, no pet.).  A trial court may dismiss a suit under Rule 165a when (1) a party fails to appear for a trial or hearing or (2) when a suit is not disposed of within the time standards given by the Supreme Court.  Tex. R. Civ. P. 165a(1), (2); Steward, 143 S.W.3d at 163-64. Independent of the rules of civil procedure, a trial court may also dismiss a suit under its inherent authority by finding a lack of due diligence in prosecuting the case.  Villarreal, 994 S.W.2d at 630; Allen v. Rushing, 129 S.W.3d 226, 230 (Tex. App.—Texarkana 2004, no pet.).

          The trial court did not specify under what authority it dismissed the case.  However, we know from the record that Welch did not fail to appear for trial or a hearing. Therefore, the trial court could have dismissed the case only because the suit was not disposed of within the applicable time periods[3], or for lack of due diligence in prosecuting the case.

          We review a dismissal for want of prosecution under an abuse-of-discretion standard.  State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Steward, 143 S.W.3d at 164.  A trial court abuses its discretion when it acts "without reference to any guiding rules or principles," or, stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985)).  The trial court may consider the entire history of the case, including: (1) the length of time the case was on file; (2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence of a reasonable excuse for the delay.  In re Marriage of Seals, 83 S.W.3d 870, 874 (Tex. App.—Texarkana 2002, no pet.).

          Welch argues that he exercised due diligence up until his case was abated.  After that point, he argues that he was unable to cure the alleged defect in his pleadings, and he was unable to appeal the abatement.  He explains that because of this, he was at a loss as to how to proceed procedurally with the case.  Welch points to activity in the case after this Court reversed the first dismissal, and further asserts that nothing substantial could be done because, after this Court's mandate in June, the case was still in suspension due to the abatement. He further argues that he was attempting to come up with a creative way to put the issue of standing back before the court by filing his motion for partial summary judgment.

          Appellees argue that there was no activity in the case from March 1998 to August 2000 and that this represents a lack of due diligence to prosecute the case.  Appellees further argue that Welch could have filed his motion for partial summary judgment in that time period, and not after the case was reversed on appeal. They also point to the time between June and December 2002 in which there was no activity as a lack of due diligence.

          A plea in abatement does not defeat the pending action but merely suspends the assertion of a right alleged in the petition. M & M Const. Co., Inc. v. Great Am. Ins. Co., 747 S.W.2d 552, 554-55 (Tex. App.—Corpus Christi 1988, no pet.).  The plea should show the grounds on which the suit was improperly brought and set forth the information necessary to guide the plaintiff to correct the defect.  Id.  Once granted, a plea in abatement is considered purely interlocutory and is not subject to appeal.  Johnson v. Avery, 414 S.W.2d 441, 443 (Tex. 1966).  The suspension of the case is to give the plaintiff an appropriate amount of time to cure the defect.  If the plaintiff does not or cannot cure the defect, the court should dismiss the case, creating a final judgment from which the plaintiff can appeal.  See Texas Highway Dept. v. Jarrell, 418 S.W.2d 486, 488 (Tex. 1967); Martin v. Dosohs I, Ltd., Inc., 2 S.W.3d 350, 353 (Tex. App.—San Antonio 1999, pet. denied).

          Appellees complained of Welch's standing to bring suit in their plea in abatement.  As stated above, standing is an issue of subject matter jurisdiction and should be brought before the trial court in a plea of jurisdiction.  Cortez, 66 S.W.3d at 231; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  If a plea of jurisdiction is granted, the case is dismissed, and the plaintiff can appeal the decision.  Jarrell, 418 S.W.2d at 488.  The court could have treated the plea in abatement as a plea to the jurisdiction and dismissed the case, but it chose instead to treat it as a plea in abatement. See Blue, 34 S.W.3d at 552.

          This left the plaintiff in a situation where he could not appeal the abatement and could not on his own motion ask for a dismissal.  Asking for relief through mandamus might have been an available remedy; however, we have never held that mandamus is available when a trial court erroneously grants a plea in abatement.  Also, mandamus is generally not available to control the incidental rulings of a trial court, such as rulings on pleas in abatement.  Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (stating that mandamus to compel the granting of pleas in abatement is generally limited to those instances where one court has interfered with the jurisdiction of another); See also Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex. 1969); But see, In re Sims, 88 S.W.3d 297, 306 (Tex. App.—San Antonio 2002); In re Hibernia Nat. Bank, 21 S.W.3d 908, 908-09 (Tex. App.—Corpus Christi 2000).

          We find that Welch has shown good cause for the long period of inactivity in this case.  We note that the case had continual activity with multiple discovery filings along with Murray's three requests for a trial setting.  Even after the first abatement, the record indicates activity with Welch's two requests for a hearing on his motion to reinstate.  Once the case was abated for the second time, there was no activity for a long period.  Yet, Welch responded immediately to the dismissal, and was active in the appeal and after the Court reversed the first dismissal.  Also, each time the issue of standing was put before the trial court, Welch filed lengthy briefs documenting his right to pursue the case as an assignee.

          We find that the granting of the plea in abatement effectively kept Welch from continuing with the lawsuit, as no possible cure in the pleadings could correct the Appellees' claim of lack of standing. Hebert v. Shrake, 492 S.W.2d 605, 607 (Tex. Civ. App.—Houston [1st Dist.] 1973, no writ) (sustaining the trial court's dismissal for want of prosecution because the plaintiff could not show her inability to amend her pleadings after abatement).

          We recognize this lawsuit spans over nine years and acknowledge that the property at issue has changed hands several times. However, the use of a plea in abatement to dispose finally of litigation is not to be encouraged.  Martin, 2 S.W.3d at 353; Harper v. Welchem, 799 S.W.2d 492, 496 (Tex. App.—Houston [14th Dist.]1990, no writ); M & M Const., 747 S.W.2d at 554-55; Hatfield v. City of Port Arthur, 598 S.W.2d 669, 671 (Tex. Civ. App.—Beaumont 1980, no writ).  Therefore, we find the trial court abused its discretion in dismissing Welch's case for want of prosecution.  Accordingly, we sustain Welch's first issue.

CONCLUSION

          We reverse the orders of the trial court dismissing Welch's case for want of prosecution and denying Welch's motion for partial summary judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

                                                                   FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Justice Vance dissents with a note.  Without regard to the merits of his claim, I would hold that Welch, as owner of the servient estate, had standing in his own right to sue to remove the easement as a cloud on his title.  Murren v. Foster, 674 S.W.2d 406, 409 (Tex. App.—Amarillo 1984, no writ) (“Foster’s allegations of his title to the property and Mrs. Murren’s asserted adverse claim casting a cloud upon his enjoyment of the land is sufficient for him to maintain his action to remove the cloud.”).  The easement is as much an encumbrance on his title as it was Salter’s title.  At the same time, I would hold that the trial court did not abuse its discretion in dismissing the suit on the defendants’ motion for want of prosecution.)

Reversed and remanded

Opinion delivered and filed November 3, 2004

[CV06]

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    [1]       It is settled law that a plea in abatement may defeat the suit but would not bar the plaintiffs from bringing another suit on the same cause of action. Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354 (Tex. App.—San Antonio 1999, pet. denied); Taliaferro v. Warren, 30 S.W.2d 393, 394 (Tex. Civ. App.—Dallas 1930, no writ); see Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 309 S.W.2d 208, 214, 1 Tex. Sup. Ct. J. 136 (Tex. 1958).    

    [2]       The five instances where assigned choses in action are void are as follows: (1) the assignment of an interest in an estate is void if used to contest a will.  Trevino v. Turcotte, 564 S.W.2d 682, 690 (Tex. 1978); (2) the assignment of  plaintiff's claim to a tortfeasor in settlement is void when tortfeasor asserts the claim against a joint tortfeasor.  Intl. Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex. 1988); (3) "Mary Carter" agreements are void.  Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex. 1992); (4) the assignment of a defendant's claims against his insurer to the plaintiff is void under certain circumstances.  State Farm Fire and Cas. Co. v. Gandy, 925 S.W.2d 696, 705 (Tex. 1996); and (5) the assignment of client's legal malpractice claim arising out of litigation is void.  Zuniga v. Groce, Locke, & Hebdon, 878 S.W.2d 313, 318 (Tex. App.—San Antonio 1997, writ ref'd).

    [3]       For jury trials, the applicable time period is 18 months from appearance date. Tex. R. Jud. Admin. 6.