*1 BRYCE, Appellant, James R. CHRISTI AREA CORPUS CONVENTION BUREAU, AND TOURIST Texas non- profit Corporation, and Bob Appellees.
No. 1322. Texas, Appeals Court of Civil Corpus Christi. May 1978. Rehearing Denied June 1978. Rehearing Aug. Denied 1978. Second Amis, David T. P. Lancaster Steven
Dallas, petitioner. for Wade,
Henry Tem- Atty., Dist. Maridell Dallas,
pleton, Atty., respon- Asst. Dist. for
dent.
PER CURIAM.
The Application Writ Error is re-
fused, “No Reversible Error.” Rule
Texas Rules of Civil Procedure.
We writing note the further of the Court jurisdiction Appeals questioning Civil shall be directing appeals that future
governed by Rule 385. 565 this, disagree.
We As to we hold that the
thirty-day period filing for the of the notice appeal generally,” “as in civil cases see Code, 56.01(d) Family ap-
plicable an order of the appeals from jurisdiction
trial its exclusive waiving court juvenile to a criminal transferring the an prosecution
district court for as adult.
4Q7 Williams, Michael W. Corpus Christi, for appellant. Anderson, Jr.,
William R. Sorrell, Ander- Sorrell, son Anthony Pletcher, & Maddin, Brin, Inc., White & Corpus Christi, for ap- pellees.
OPINION BISSETT, Justice.
This is an appeal from an order which
dismissed plaintiff’s cause of action. James
R. Bryce, a
resident
Corpus Christi, Texas, sued Corpus Christi
Area
Convention and Tourist
here-
Bureau”,
inafter called the “Tourist
Bob
its executive
president,
vice
money
recover
on behalf of the
which the City donated to
pursuant
Tourist Bureau
to “a contract
or contracts
between the
and the Tour-
ist
general
Bureau”. Both defendants filed
denials,
Tourist Bureau filed a mo-
QUASH
tion styled “MOTION TO
PLAIN-
TIFF’S
OF ACTION IN
EN-
CAUSE
ITS
granted
TIRETY”. The trial court
the mo-
tion and dismissed the suit.
James R.
Bryce, plaintiff,
appealed.
summary,
1)
In
plaintiff alleged:
he is a
property taxpayer
of the
pursuant
to “Article
Corpus Christi,
Charter of
Tex-
as”; 2) tax monies were furnished to the
the City of Corpus
Christi; 3) some of the monies so furnished
were
used
the Tourist Bureau for the
publication and distribution of
maga-
two
zines,
Sparkler”
“The
and “The Texas Trop-
Coast”; 4)
ical
ownership
“the
of the maga-
zines
represented
aforesaid is
by the de-
privately in the defendant
fendants to be
Charter
Conwell”; 5)
Conwell was allowed
Bob
was not introduced in evidence at the hear-
retain
the Tourist Bureau to
for himself all
ing. No evidence was offered at the hear-
resulting from the sale of the
profits
ing relating to whether the monies sued for
magazines;
paid by
the monies
the were or were not dividends which were
constituted a
Tourist Bureau to Conwell
members,
distributed to
directors
of-
*3
dividend “in direct contravention
ficers of the Tourist Bureau in contraven-
1396-2.24,
gener-
In addition to
V.A.T.S.”.
tion of Article 1396-2.24.
relief,
1) an
plaintiff
prayed
al
for:
The
hearing
aforesaid
was held on Sep-
accounting
paid
for all services and income
13, 1977.
judge granted
tember
The trial
City
by
tax monies of the
used
the
from
the motion and dismissed
per
writ-
publi-
Tourist Bureau and Conwell for the
order,
ten
signed
which was
on October
2)
magazines;
accounting
an
cation of the
1977. The order
in
of dismissal is couched in
profits generated by advertising
of all
3)
terms,
magazines;
general
the
and
a return of all tax
indicating
without
the basis
general
City
fund of the
of all
monies
ruling.
for the
profits
publication
derived from the
and
City
Corpus
party
Christi is not a
magazines.
distribution of the
to
showing
this suit. There is no
that the
Bureau,
The Tourist
in the aforesaid mo- City
authorized
to file this suit. The
tion,
alleged:
allegation
Bryce brings
“James
this action
the
not authorize a suit to
Charter does
property taxpayer”
as a
of the
of Cor-
brought by
private
“against
a
citizen
a
be
Christi,
pus
the allegation
and
that
with the
contractor
sues to recover tax monies of the
ille-
whereby
only
claim
is
by
such
spent
gally
general
for the
fund of the City
contracting party
that such
has made an
do not make the
aCity
party to the action
distribution”;
2) Bryce
and
not
illegal
“is
brought by Bryce. This suit is a controver-
party
may bring
private
a
who
such
sy solely
Bryce,
between
the Tourist Bureau
citizen an action
this Defendant
and Conwell.
Article 1396-2.24”. For those rea-
under
alone,
sons,
the Tourist Bureau
and those
We know of no rule which permits
prayed that:
entirety
dismissal of a lawsuit in its
in
Original Petition in its en-
“[PJlaintiff’s
response
quash
to a motion “to
plaintiff’s
that
is
tirety
quashed for reason
same
be
However,
cause of
by
action”.
the name
not the ca-
brought by
party
a
which a motion
designated
is
does not de
authority
to institute such
pacity or
character,
termine its
and we attach no
hearing
and that on
controlling effect to the
styling
Tour
petition
Plaintiff’s
be abated in its entire-
ist Bureau’s motion in this case. We look to
ty;”
the substance of the motion.
motion,
to
duly
which was sworn
and
verified,
hearing. Evi-
was set down for
Bureau, during
The Tourist
oral ar
hearing.
dence was introduced at
argued
effect,
gument,
in
Bryce,
by
who was called as a witness
plea
a
in abatement
the trial
is
and
Bureau,
he
testified that
in
Tourist
lived
properly
plea
court
sustained the
and dis
property
owned
situated
is,
the suit. Whether
missed
the motion
in
City.
City,
paid
and
taxes to the
within
essence,
plea
a
in abatement
is determined
that he was not member
He also stated
by the substance of the
and the
further
testified
Bureau. He
the Tourist
accomplished
effect which will be
if it is
any complaint about
that he did not have
granted.
Dallas,
Smith v.
404
which existed between
the contracts
(Tex.Civ.App.
839
no
that he
the Tourist
City and
— Dallas
writ); Armstrong v. Snapp,
499 sustaining nary plea trial as if the were one Generally speaking, be pending confusing defeats the abatement is and not to in abatement plea of a not bar a revival encouraged.” but does action cause. action on the same action or a future bar, In the case at the motion cannot postpone the en So, merely matters which be be considered as a in abatement petition in the right of a forcement improperly cause the action has been The matter in abatement. necessarily are brought go that does not some it is in which decided, the form is the merits of the cause of action. There Am.Jur.2d, raised, substance. but are no of fact set out therein. 2; Revival, Abatement, § Survival The assertions that Article Revival, Tex.Jur.2d, Abatement § does not authorize the Charter should not in abatement pleaA bringing by Bryce, of the suit and that he is grounds upon which the suit only show the bring not authorized such suit under should also show improperly brought, but *4 conclusions, the referenced statute are brought, and it should have been how allegations of fact. The further assertion facts, not conclusions always state should petition “quashed” the should be be 682, Tex. 11 Goodnight, v. 70 law. State Bryce “capacity” did not have the or cause (1888). plea such a is sus 119 When S.W. “authority” to institute the suit is also a tained, should not be dismissed solely when tested conclusion. given has been a reasona until the therein, in by the contained amend, possible it is opportunity to if ble plea in abatement. sufficient so, thereby remove the obstacle do cannot be treated as a The motion initially filed. which defeated the suit nor can it summary judgment, motion for dismissed, it is revived Even if the case-is in In either of plea be considered as a bar. which upon the removal of such obstacle instances, only judgment those the which prosecution in the prevented its further could be rendered in the event the motion Life Ass’n of America v. instance. first plea was would be a take noth sustained Goode, 90, (1888); 639 Hum 71 Tex. 8 S.W. Here, judgment the ing judgment. was Co., phrey v. National Fire Ins. 231 S.W. dismissal. adopted). (Tex.Com.App.1921, opinion 750 sufficiency plea must be tested circumstances, the the Under allegations, and cannot be assist by its own foregoing reasons stated and under the au plea. in other Breen by allegations any ed thorities, it was reversible error to render a 44 Railway Company, Pacific v. Texas and judgment respect of dismissal with Tex.Jur.2d, (1875); 1 Abatement Tex. 302 by Bryce against suit filed the two defend Revival, § ants, the Tourist Bureau and Conwell. sustaining plea a in abate- The result of Moreover, judgment a reversal of the inso Highway Texas pointed was out in ment against far as it dismissed the suit 486, Jarrell, 488 v. 418 S.W.2d Department require also a rever Tourist Bureau would Calvert, by Justice (Tex.Sup.1967), Chief judgment sal of the insofar as it dismissed Court, who, said: speaking for against Conwell. abatement, in if sus- “. . . [a] by City’s tax monies were donated tained, an abatement require would Bureau, illegal to the Tourist until some the claim or cause of action Conwell; ly paid such monies to was prosecution to its further obstacle them; illegally latter received and that ” . . . removed In that illegally spent two the same. state by observed Garwood It was Justice the action asserted is so pleadings, Company, 158 Tex. Kelly v. Bluff Creek Oil and interwoven with interrelated 208, (1958): 180, 214-215 309 S.W.2d of the Tourist Bureau and Conwell the acts to sever the action and misnaming impossible that it is practice “. . . [T]he each, that all prelimi- proceed independently as to so procure in order to plea in bar 500
issues should be resolved
one suit
“James
brings
R.
this action as a
both
that the judg-
defendants. We believe
property taxpayer pursuant
to Article
entirety
ment as to its
should be reversed
18,
Charter of
and the cause as to both defendants be
Christi, Texas, to recover all monies ille-
justice.
remanded in the interest of
Rule
gally and without
paid
authorization
by
434, T.R.C.P.
the defendant Corpus Christi Area Con-
vention and Tourist
officer,
Bureau to its
judgment
Since the
of the trial
defendant Bob
from tax monies
court will be reversed and the cause re
furnished to
said
Christi Area
manded, we observe that
the law is well
Convention and
city
settled that a
of a
does not
City of Corpus Christi pursuant
to a con-
standing to bring
pub
have
suit to recover
tract or contracts between the City and
lic
city already illegally
funds of the
ex
”
the said Tourist
(cid:127)
.
.
Bureau
Graham,
pended
city.
v.
Scott
156
(1956);
Tex.
292
324
S.W.2d
Hoffman
The Tourist
in its said
Davis,
(Tex.
128 Tex.
100
94
S.W.2d
alleged:
App.1937, opinion adopted);
Comm’n
First
“Article
Section 18 does not authorize a
National Bank of Bellaire v. Prudential In
suit to be brought by a private citizen
America,
surance Co. of
against a contractor whereby the only
[14th Dist.]
— Houston
claim
such Plaintiff is that such con-
ref’d, n.r.e.);
Austin,
writ
Glass v.
tracting party has made an illegal distri-
Tourist T. Hannah where solely to cases apply original opinion illegally expended public itself al., Appellees. Freddrick LILLIE et sought, not Here, recovery is funds. against but the Tourist City, 1127. No. 1) an grounds: well on two Bureau and Con Appeals Court of Civil of Tourist by the defendant Texas alleged violation , Tyler. 1396- art. Bureau Tex.Rev.Civ.Stat.Ann. 2.24; provisions pursuant June 1978. IX, Article Section July Denied Rehearing Assuming, arguendo, Christi Charter. may bring party not such
Bryce is statute, the aforesaid
this suit under order on the Tourist
burden was prove
to sustain was not authorized
brought by Bryce This, 18 of the Charter. original in the
it did not do. As noted portion of the Charter
opinion, the relevant the hear not introduced in evidence at
was
ing the motion. The record does on City Corpus
show that the Charter of the including Article
thereof, recorded or certified in has been by Tex.Rev.Civ.Stat. required
the manner 1174, respectively.
Ann. 1165 and arts. (nor
Consequently, neither the trial court Court) judicial notice of
this could take *6 18 of the Charter. See Amarillo, 508
Kirkman v. 1974, writ (Tex.Civ.App. — Amarillo Houston, n.r.e.); Hayden ref’d Worth
305 S.W.2d — Fort n.r.e.). the record writ ref’d Under presented, provision
here since the relevant in evi
of the Charter was not introduced autho and as the trial court was not
dence judicial
rized to take notice Charter, no basis existed 18 of the of the action.
for an abatement rehearing is OVER-
The motion for
RULED.