Welch v. Monroe, No. 10-03-00013-CV (TX 11/3/2004)
| Decision Date | 03 November 2004 |
| Docket Number | No. 10-03-00013-CV.,10-03-00013-CV. |
| Parties | FINIS WELCH, Appellant v. FAYE M. MONROE, GAYLE E. TITTLE, AND DAVID FREE, Appellees. |
| Court | Texas Supreme Court |
Appeal from the 87th District Court, Leon County, Texas, Trial Court # 6254-B.
Reversed and remanded.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
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.
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.
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.
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.
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 (); 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.
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
§ 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...
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