Cozad v. Roman, 1270

• Decision Date: 29 August 1978
• Docket Number: No. 1270,1270
• Citation: 570 S.W.2d 558
• Court: Texas Court of Appeals
• Parties: Celine COZAD, Appellant, v. Frank ROMAN et al., Appellees.

Page 558

570 S.W.2d 558

Celine COZAD, Appellant, v. Frank ROMAN et al., Appellees.

No. 1270.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 29, 1978.

Rehearing Denied Sept. 21, 1978.

Preston E. Henrichson, Henrichson-Smith, P.C., Edinburg, for appellant.

James DeAnda, Rafael Flores, Flores, Sanchez, DeAnda & Vidaurri, McAllen, Thomas W. Wilkins, Wilkins & Phillips, McAllen, for appellees.

OPINION

YOUNG, Justice.

Celine Cozad, daughter of Monica Z. Ramsower, sued Frank Roman, McCook Cattle Company and Mrs. Ramsower complaining that her mother had been unduly influenced by Roman and McCook into selling, or entering into a contract of sale of, a certain parcel of land for an inadequate and unconscionable amount. Cozad sought to rescind or cancel the purported sales contract or deed. Defendants answered with pleas in abatement and a special exception challenging plaintiff's standing to bring the suit. In a hearing held before the court without a jury, the trial court, by an order signed on June 1, 1977, sustained the defendants' pleas and special exception and dismissed the plaintiff's suit. Plaintiff Cozad appeals. We reverse and remand.

In her original petition, filed March 8, 1977, Cozad alleges, among other things, that she is bringing the suit individually; that she is the daughter of Mrs. Ramsower; that she now has and always has had "the utmost love and affection for the mother"; that she brings this suit for the protection of her mother from the undue influence of the other defendants and other persons; that she, the plaintiff, and her mother are joint-tenants of 9,290.5 acres of land in Hidalgo County, Texas, in that she owns an undivided 1/4 interest thereof and her mother owns an undivided 1/2 interest thereof; that she believes that her mother has entered into a contract of sale with McCook, and perhaps a deed, covering all or a portion of the mother's undivided interest in the land; that the defendants Roman and McCook by undue influence have caused her mother to sell or contract to sell her interest in the land for an inadequate price and under unconscionable terms.

Cozad further alleges that she would be one of the material recipients of her mother's bounty, but Roman and others by undue influence have estranged Cozad from her mother; that because of the estrangement she is entitled to damages from Roman. For all of the above reasons she says that the court should void and set aside the contract and/or deed regarding the subject property and should award her damages against Roman.

The gist of appellees' pleas in abatement and special exception is that appellant has no standing or justiciable interest to maintain this suit.

A hearing was had on the pleas in abatement and special exception on June 1, 1977. On this same day appellant filed an application for the guardianship of her mother in the county court at law. At the outset of the hearing, the appellant requested that she be given leave to amend her pleadings. No immediate response was given by the trial court to the request. But the court proceeded with the hearing during which it stated that it would treat the pleas in abatement as special exceptions. No evidence was introduced and the court sustained the pleas and the exception and dismissed appellant's case without prejudice to her right to refile the suit should she be appointed to represent Mrs. Ramsower in any representative capacity.

Cozad brings six points of error. We will first consider point 5 which sets out several reasons why the trial court erred in considering and granting the defendants' unverified pleas that the plaintiff lacked legal capacity to sue.

In Hous. Authority, etc. v. State ex rel. Velasquez, 539 S.W.2d 911, 913 (Tex.Civ.App. Corpus Christi 1976, writ ref'd n. r. e.), we stated at page 913:

"It is a fundamental rule of law that without a breach of a legal right belonging to the plaintiff, no cause of action arises or can accrue to his benefit. . . . For a person to maintain a court action, he must show that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity. . . .

The issue of standing to sue has been the subject of much discussion. As a general rule, . . . a person has standing to sue, if: 1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; 2) he has a direct relationship between the alleged injury and claim sought to be adjudicated: 3) he has a personal stake in the controversy; 4) the challenged action has caused the plaintiff some injury in fact, either economic, ethic, recreational, environmental or otherwise; or 5) he is an appropriate party to assert the public's interest in the matter, as well as his own interest . . ."

Moreover, in Glass v. Carpenter, 330 S.W.2d 530 (Tex.Civ.App. San Antonio, 1959, writ ref'd n. r. e.), the Court there stated at page 536:

"to be entitled to maintain a suit for the rescission or cancellation of a contract one must have some interest therein. As a general rule, a party to a contract or a privy therein, and he alone, is entitled to maintain a suit to cancel or rescind it."

Cozad's petition plainly fails to allege any privity or interest in the contract she seeks to rescind. Neither does the petition allege that appellant has any interest in that portion of the land being sold. At most, appellant to show standing infers an expectation of future inheritance. This is not enough to create a justiciable interest. See Hollar v. Jowers, 310 S.W.2d 721, 724 (Tex.Civ.App. Eastland 1958, writ ref'd n. r. e.); Jones v. Eastham, 36 S.W.2d 538 (Tex.Civ.App. Galveston 1931, writ ref'd). Thus, we think appellant has failed to show the necessary justiciable interest to maintain this action.

On the other hand, appellant asserts five reasons why standing is shown in this case. She first asserts that she has standing because she is in essence suing as next friend of her mother. We find no such allegation of next friend status in appellant's petition. The petition expressly states that it is being brought by appellant individually and it nowhere else asserts any type of representative capacity.

Secondly, appellant asserts standing is conferred because a future event may happen; i. e., appellant might be appointed guardian of her mother. This argument is answered by the Commission of Appeals in Town of Refugio v. Strauch, 29 S.W.2d 1041 (Tex.Com.App.1930, jdgt. adopted) wherein the Court there said at page 1044:

". . . Courts do not decide cases on what may happen in the future, but upon present conditions, as demonstrated by the facts in a particular case. . . ."

This Court, in Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n. r. e.), reasoned to the same effect.

Thirdly, appellant contends she has standing as a joint-tenant of the realty involved in the subject contract of sale. Appellant cites Reina v. Erassarret, 90 Cal.App.2d 418, 203 P.2d 72 (1949), and Gillette v. Nicolls, 121 Cal.App.2d 185, 262 P.2d 856 (1953), for the proposition that a joint-tenant has...