Cleaver v. George Staton Co., Inc.

• Decision Date: 31 July 1995
• Docket Number: No. 12-93-00168-CV,12-93-00168-CV
• Citation: 908 S.W.2d 468
• Parties: Jimmy Maurice CLEAVER, Appellant, v. GEORGE STATON COMPANY, INC., Staton Materials, Inc., Joe B. Staton and George D. Staton, Jr., Appellees.
• Court: Texas Court of Appeals

Page 468

908 S.W.2d 468

Jimmy Maurice CLEAVER, Appellant, v. GEORGE STATON COMPANY, INC., Staton Materials, Inc., Joe B Staton and George D. Staton, Jr., Appellees.

No. 12-93-00168-CV.

Court of Appeals of Texas Tyler.

July 31, 1995.

As Corrected on Denial of

Rehearing Sept. 29, 1995.

Michael E., Jarrett, Tyler, for appellant.

R. Michael Northrup, and Charles T. Frazier, Jr., Dallas, for appellees.

Before RAMEY, C.J., and HOLCOMB, J.

RAMEY, Chief Justice.

The principal issue presented by this appeal is whether a district court has jurisdiction of an estranged husband's suit against a third party trustee in which his wife is the beneficiary of the trust the payments from which are her separate property or sole management community property. In 1992, Jimmy Maurice Cleaver ("Husband") sued Joe B. Staton ("Trustee") and Staton lumber yard, subsequently incorporated as George Staton Company, Inc. and Staton Materials, Inc., the George D. Staton, Sr. Trust and George D. Staton, Jr., (together "Statons") for fraud, conversion as well as breach of fiduciary duty and the Texas Trust Code ("Trust Suit"). When this suit was filed, a separate divorce suit ("Divorce Suit") was pending between Sally Susan Staton Cleaver ("Wife") and Husband in the county court at law. The trial court subsequently abated the Trust Suit, ruled that the defect could not be cured by amending his pleadings and dismissed it on the grounds that Husband cannot recover in the capacity in which he sued and has no standing to bring the suit. In his third point of error, Husband asserts that the trial court erred in dismissing the case for lack of standing or capacity. We will affirm the trial court judgment.

Although the two stated grounds for the trial court's ruling, "capacity" and "standing" to bring the lawsuit, are not identical, the distinction as applied to this case is somewhat blurred. Generally, the lack of "capacity" to sue pertains to the legal right to prosecute a lawsuit in one's own name, such as arises from the disability of minority or mental incompetency. On the other hand, "standing" is held to be an element of subject matter jurisdiction. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). The "standing" doctrine requires that the plaintiff have a justiciable interest in the matter in dispute. Texas Industrial Traffic League v. Railroad Comm'n., 633 S.W.2d 821, 823 (Tex.1982). Here, we will focus upon "standing" to bring the lawsuit.

George Staton, Sr. died in 1966. By testamentary disposition, he established individual trusts for his children, the subject trust naming Wife as the sole beneficiary of the income from that trust for life. She was then single. The trust corpus consisted of one twelfth of the assets of Staton lumber yard, subsequently incorporated as George Staton Company, Inc. and Staton Materials, Inc., and miscellaneous other assets. In 1971, prior to reaching her twenty-first birthday, she married Husband. Husband alleges that no significant trust distributions to Wife have been made. Apart from the claims in the underlying Trust Suit, Husband and Wife's community estate is alleged to be negligible.

At Husband's instance, the Divorce Suit was transferred from the county court at law to the district court, the forum in which the Trust Suit was pending. After a hearing on January 5, 1993, which hearing was completed on February 23, 1993, the trial court dismissed the Trust Suit on the grounds that Husband was not entitled to recover in the capacity in which he sued and his lack of standing to sue for Wife's trust distributions. The trial court made no ruling on the other issue considered at the hearings, the Motion to Consolidate the two suits; it did not file requested Findings of Fact and Conclusions of Law.

The trust provides for current mandatory payments of income from the corpus to the Wife for life; she was conveyed no ownership interest in the corpus of the trust and has no present possessory interest in the corpus. The trust income payments to the Wife are thus her separate property. In re Marriage of Long, 542 S.W.2d 712, 717-18 (Tex.App.--Texarkana 1976, no writ). If any trust benefits to the Wife are characterized as community property, they would be the sole management community property or "special community" of the Wife. TEX.FAM.CODE ANN. § 5.22(a)(2) (Vernon 1993).

Wife is a necessary party in Husband's suit for the recovery of trust funds for their community estate. TEX.PROP.CODE ANN. § 115.011(b) (Vernon 1984). Originally, Husband did not make Wife a party to the Trust Suit. In his First Amended Original Petition, however, Husband named Wife an "involuntary plaintiff" in the suit; ¹ the Husband's allegations in this pleading did not implicate her in claimed misconduct. Wife was never served with process. Wife contends that naming her as a party, without more, does not invoke the court's jurisdiction of her person.

At the January 5, 1993, hearing to consider the questions of standing and consolidation, counsel for the Wife in the Divorce Suit made an appearance to represent her interests in that suit on the issue of its consolidation with the Trust Suit; he advised that he would accept service of process for the Wife in the other cause of action, the Trust Suit, "and go forward in that regard". No answer or other written pleading on behalf of the Wife, however, was filed in the Trust Suit.

It has long been the rule in Texas that to constitute a general appearance where the party has filed no written pleading, the party must seek a specific adjudication by the court on some question other than that of the court's jurisdiction. St. Louis & S.F.R. Co. v. Hale, 109 Tex. 251, 206 S.W. 75 (Tex.1918); Liberty Enterprises, Inc. v. Moore Transportation Company, Inc., 690 S.W.2d 570 (Tex.1985); Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 327 (Tex.App.--El Paso 1994, writ denied).

At one stage of the hearing, Wife's counsel offered observations pertinent to limitations and other questions dealing with the merits of the Trust Suit but did not seek relief on any issue then pending before the court other than the issue of consolidation. He neither called nor examined any witnesses; he filed no brief as did other counsel and he sought no relief except to assert Wife's position in the Divorce Suit on the issue of consolidation. We hold that Wife made no general appearance in the Trust Suit and was not subject to the court's jurisdiction in the Trust Suit. If the court's personal jurisdiction of the Wife was dispositive of the Trust Suit, that issue could have been resolved by abating the suit until such time as the Wife had appeared voluntarily or after service of process upon her.

We next address the question of whether this Trust Suit is a "proper case" under Rule 39(a) to invoke the "involuntary plaintiff" procedure to afford Husband standing to sue the Trustee and Statons. TEX.R.CIV.P. 39(a). To the extent that the beneficial interest in the trust income payments are Wife's separate property, Husband has no standing to sue these defendants. Lester v. United States, 487 F.Supp. 1033, 1039 (N.D.Tex.1980); Weatherford v. Elizondo, 52 F.R.D. 122, 128-29 (S.D.Tex.1971). Husband, of course, does have his interest in the community estate. Although there are no specific pleadings or proof of commingling of the trust income, or of a claim for interest on the non-payment of the trust income due Wife, a contention is asserted by the Husband that the community estate has been depleted by the Trustee's failure to make trust income payments to the Wife. Until the divorce is granted, any community property trust benefits would be the Wife's special community subject to the Wife's sole management, control and disposition, and only the Wife has the authority...