Bell v. Moores

• Decision Date: 11 June 1992
• Docket Number: No. B14-91-00875-CV,B14-91-00875-CV
• Citation: 832 S.W.2d 749
• Parties: Wanda BELL and Shirley Fisher, Appellants, v. John J. MOORES, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 749

832 S.W.2d 749

Wanda BELL and Shirley Fisher, Appellants, v. John J. MOORES, et al., Appellees.

No. B14-91-00875-CV.

Court of Appeals of Texas Houston (14th Dist.).

June 11, 1992.

Rehearing Denied July 16, 1992.

Michael M. Phillips, Houston, for appellants.

Parker C. Folse, III, Barry C. Barnett, Houston, for appellees.

Before PAUL PRESSLER, MURPHY and CANNON, JJ.

OPINION

PAUL PRESSLER, Justice.

Appellants sought recovery of royalties which they alleged appellees had agreed to pay their husbands. The trial court granted summary judgment. The judgment of the trial court is dismissed in part and affirmed in part.

In 1979, Scott Boulette, Daniel Cloer, and John J. Moores formed the BMC partnership to develop and market computer software, operate a placement service for computer programmers, and provide contract computer programmers. Subsequently the partnership dissolved and Moores formed BMC Software, Inc. BMC Software, Inc. took over the development and marketing of computer software. Wayne E. Fisher and Robert Jennings Bell were employed by the corporation as software developers. Appellants alleged that both men were to receive a salary plus a one-third royalty of the gross sales for all software they authored. Wanda Bell was married to Robert Jennings Bell. They were divorced on November 15, 1988. Shirley Fisher was married to Wayne E. Fisher. They were divorced on January 21, 1985.

In December 1987, appellants intervened in a suit against appellees alleging that appellees had breached their husbands' employment agreements. Appellants sought to recover one-half of the one-third royalties allegedly owed to their husbands. Appellees moved for summary judgment. Appellees claimed that neither appellant had standing to bring suit and further alleged that Shirley Fisher's claim was barred by res judicata. The trial court granted summary judgment on February 1, 1990.

In their first point of error, appellants allege the trial court erred in granting summary judgment based on appellees' assertion that Wanda Bell lacked standing to bring this suit.

A summary judgment is not entitled to the same deference given to a judgment following a trial on the merits. Pursuant to rule 166a(c), a summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-29 (Tex.1970); TEX.R.CIV.P. 166a(c). Once the movant has established a right to summary judgment, the burden shifts to the non-movant. The non-movant must then respond and present any issues which would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). When reviewing the granting of a motion for summary judgment, the appellate court does not view the evidence in the light most favorable to the judgment of the trial court. The standard for reviewing a summary judgment has been clearly mandated by the Texas Supreme Court as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubt resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

In their motion for summary judgment, appellees alleged that Wanda Bell had no standing to bring suit for breach of her husband's employment contract. Appellees argued that since the alleged royalties were personal earnings of Robert Bell, he had sole management, control and disposition over those funds under TEX.FAM.CODE ANN. § 5.22(a) (Vernon 1975). Therefore, appellees contend that only Robert Bell had standing to bring suit to recover those earnings. In their brief, appellees argue that this argument is flawed because: (1) a spouse has a right to protect her community interest in community property from a third party where a spouse intentionally uses his right of management to deprive the other spouse of interest in the property; and (2) Wanda Bell was divorced from Robert Bell before the summary judgment was granted.

It is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for an injury. Develo-Cepts, Inc. v. City of Galveston, 668 S.W.2d 790, 794 (Tex.App.--Houston [14th Dist.] 1984, no writ); Berger v. Berger, 578 S.W.2d 547, 549 (Tex.Civ.App.--Houston [1st Dist.] 1979, no writ). The right to maintain an action depends upon the existence of a cause of action, which involves the combination of a right on the part of the plaintiff and a violation of such right by the defendant. Berger, 578 S.W.2d at 549. No person may maintain an action in court unless it is shown that he has a justiciable interest in the subject matter of the litigation. Id. Without a breach of a legal right belonging to the plaintiff, no cause of action can accrue to his benefit. Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976).

Personal earnings are community property if earned during marriage. See Maben v. Maben, 574 S.W.2d 229, 232 (Tex.Civ.App.--Fort Worth 1978, no writ); TEX.FAM.CODE ANN. § 5.01(b) (Vernon 1975). Though personal earnings are community property, Texas law has classified this kind of community property as "special community." See Valdez v. Ramirez, 574 S.W.2d 748, 750-51 (Tex.1978). "Special community" is community property that is subject to one spouse's sole management, control, and disposition. Valdez, 574 S.W.2d at 750-51; TEX.FAM.CODE ANN. § 5.22(a) (Vernon 1975). Personal earnings are subject to the sole management, control, and disposition of the employee spouse. See Medenco, Inc. v. Myklebust, 615 S.W.2d 187, 189 (Tex.1981).

Courts have held that an employee spouse, because of his exclusive managerial power over personal earnings, has the sole authority to bring an action for recovery of the community property under his sole management. See Lester v. United States, 487 F.Supp. 1033, 1040 (N.D.Tex.1980) (applying Texas law); Weatherford v. Elizondo, 52 F.R.D. 122, 128 (S.D.Tex.1971) (applying Texas law).

In Weatherford, the husband was attempting to sue for his wife's personal injuries. The suit was a diversity action in which the husband was a citizen of New Mexico and the wife was a citizen of Texas, as were several of the defendants. The defendants alleged that the wife was an indispensable party, and, therefore, there was no complete diversity and the federal court lacked jurisdiction. 52 F.R.D. at 124. The court found that the wife was an indispensable party to an action to recover for her own personal injuries because this property was community property under her sole management, and that the husband could not maintain the suit on his own. Id. at 129.

In Lester, a husband sued individually and on behalf of the community estate to recover damages for his wife's personal injuries. The claims for relief included, among other things, a claim for loss of Mrs. Lester's earning capacity. The court stated that it had to determine whether the Texas Legislature, by enacting TEX.FAM.CODE ANN. § 5.22 (Vernon 1975), intended to deprive a husband in all circumstances of bringing a suit to recover his wife's community property under her sole management. Citing Weatherford v. Elizondo, the court held that the mere relationship of husband and wife does not give the power to either spouse to bring suit for the community property under the other spouse's sole management, and that accordingly, Mrs. Lester had the sole power to bring an action because of her management power. Lester, 487 F.Supp. at 1040. Therefore, Mr. Lester had no standing to bring suit to recover for his wife's lost earnings. The court stated that it agreed with the holding in Weatherford, especially in view of certain Texas decisions holding that the wife has the sole right to manage, control, and dispose of her causes of action to recover damages for personal injuries, including lost earnings. Lester, 487 F.Supp. at 1040, citing Myers v. Thomas, 502 S.W.2d 941, 943 (Tex.Civ.App.--Beaumont 1973, no writ); Jamail v. Thomas, 481 S.W.2d 485, 489 (Tex.Civ.App.--Houston [1st Dist.] 1972, writ ref'd n.r.e.). The Lester court also based its opinion on Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (Tex.1971). In that case, the Texas Supreme Court held that a wife could sue to recover property considered to be community property under her sole management without the joinder of her husband. 463 S.W.2d at 427. The court held that the husband was a proper party to the suit but not an indispensable one since the recovery would be of the community property under the wife's sole management. Id. In Taylor v. Gilbert Gertner Enter., 466 S.W.2d 337 (Tex.Civ.App.--Houston [1st Dist.] 1971, writ ref'd n.r.e.), the court of appeals, also citing Few v. Charter Oak, held that a husband did not have the power to release a cause of action for his wife's personal injuries, nor did he have the sole power to prosecute a suit to recover damages for those injuries. 466 S.W.2d at 340.

At the time Wanda Bell intervened in the suit against the appellees, she was still married to Robert Bell. At that time, the royalties in question were community property under his sole management. See TEX.FAM.CODE ANN. § 5.22(a)(1) (Vernon 1975). The couple was not divorced until November 15, 1988, approximately eleven months after Wanda Bell instituted the suit. Thus, when the suit was commenced by Wanda Bell, she was without standing to assert such a claim. The property involved was subject to the sole management of Robert Bell, and as such, only he had the power to sue for recovery of the...