Svensen v. Svensen , 1981 Tex. App. LEXIS 4698 ( 1981 )

GUITTARD, Chief Justice,

dissenting.

I cannot agree that dismissal of a prematurely filed divorce suit is reversible error, or that such a suit must be reinstated when the residence requirement has been met. I conclude rather that in the absence of extraordinary circumstances the trial court has a measure of discretion which, in this case, has not been shown to have been abused.

Ordinarily, if a plea in abatement can be promptly cured by an amendment, as by adding a necessary party, the suit should not be dismissed without allowing the plaintiff a reasonable time to cure the defect. Luloc OH Co. v. Caldwell County, 601 S.W.2d 789 (Tex.Civ.App.— Beaumont 1980—writ ref’d n. r. e.); Piper v. Estate of Thompson, 546 S.W.2d 341 (Tex.Civ.App.—Dallas 1976, no writ). On the other hand, if the defect cannot be so readily cured, dismissal may be proper. Thus it has been held that when the grounds of abatement is pendency of another suit, the proper order is dismissal without prejudice to any suit filed after the ground of abatement is removed. Chem. Gas Engineers, Inc. v. Texas Asphalt & Refining Co., 395 S.W.2d 690 (Tex.Civ.App.—Waco 1965, writ ref’d n. r. e.). Even in cases supporting suspension rather than dismissal of the abated litigation pending disposition of the earlier suit, the proper order is treated as a matter within the court’s discretion. Honey v. Temple Trust Co., 55 S.W.2d 891, 893-94 (Tex.Civ.App.— Austin 1932, writ dism’d); Long v. Long, 269 S.W.2d 207, 210 (Tex.Civ. App.—Dallas 1925, no writ). On the other hand, the court may not have discretion to dismiss rather than suspend if the plaintiff’s rights cannot be preserved by filing a new suit when the impediment has been removed. This rationale seems to be the basis of the principal decision relied on by the majority, Texas Employers Ins. Ass’n v. Baeza, 584 S.W.2d 317, 321 (Tex.Civ.App.—Amarillo 1979).

I have found no authority supporting the view that dismissal is improper when the suit is premature. The Supreme Court has held that in a suit on an insurance policy, failure of the insured to comply with a condition precedent to suit, if pleaded in abatement, is not ground for denial of the claim, but rather is ground for dismissing the suit as premature. Philadelphia Underwriters’ Agency v. Driggers, 111 Tex. 392, 238 S.W. 633 (1922); Humphrey v. National Fire Ins. Co., 231 S.W. 750 (Tex.Comm’n App.1921, judgmt. adopted). See also Weatherly v. Pena, 335 S.W.2d 434 (Tex.Civ.App.—San Antonio 1960) (dismissal of premature suit on judgment which had been set aside). The present suit was premature at best because plaintiff lacked the statutory qualifications to maintain it. Admittedly, plaintiff had not satisfied the residence requirement when the suit was filed or when it was dismissed. Only subsequent developments could determine whether he would ever satisfy that requirement by residing in Texas for the statutory period. Since plaintiff lacked the statutory qualifications to maintain the suit, it seems to me that he had no right to insist that it be retained on the docket; therefore, he had no right to complain of the dismissal. The situation might be different if plaintiff could not have filed a new suit when the residence requirement was satisfied, or if he had alleged extraordinary circumstances justifying the premature filing such as a need for urgent temporary relief. No such circumstances were alleged.

Since, in my view, the original dismissal was proper, the motion to reinstate was a matter addressed to the court’s discretion even though, when that motion was presented, an amended petition alleging compliance with the residence requirement had been filed. Neither the amended petition nor the motion to reinstate alleges any justification for the premature filing. Nor does plaintiff assert that he will be prejudiced if required to file a new suit. Consequently, no abuse of discretion is shown. I would affirm the order of dismissal.