Bryce v. Corpus Christi Area Convention & Tourist Bureau

569 S.W.2d 496, 1978 Tex. App. LEXIS 3419
CourtCourt of Appeals of Texas
DecidedMay 24, 1978
Docket1322
StatusPublished
Cited by19 cases

This text of 569 S.W.2d 496 (Bryce v. Corpus Christi Area Convention & Tourist Bureau) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryce v. Corpus Christi Area Convention & Tourist Bureau, 569 S.W.2d 496, 1978 Tex. App. LEXIS 3419 (Tex. Ct. App. 1978).

Opinions

OPINION

BISSETT, Justice.

This is an appeal from an order which dismissed plaintiff’s cause of action. James R. Bryce, a resident taxpayer of the City of Corpus Christi, Texas, sued Corpus Christi Area Convention and Tourist Bureau, hereinafter called the “Tourist Bureau”, and Bob Conwell, its executive vice president, to recover money on behalf of the City of Corpus Christi, which the City donated to the Tourist Bureau pursuant to “a contract or contracts between the City and the Tourist Bureau”. Both defendants filed general denials, and the Tourist Bureau filed a motion styled “MOTION TO QUASH PLAINTIFF’S CAUSE OF ACTION IN ITS ENTIRETY”. The trial court granted the motion and dismissed the suit. James R. Bryce, plaintiff, has appealed.

In summary, plaintiff alleged: 1) he is a property taxpayer of the City of Corpus Christi pursuant to “Article IX, Section 18, of the City Charter of Corpus Christi, Texas”; 2) tax monies were furnished to the Tourist Bureau by the City of Corpus Christi; 3) some of the monies so furnished were used by the Tourist Bureau for the publication and distribution of two magazines, “The Sparkler” and “The Texas Tropical Coast”; 4) “the ownership of the magazines aforesaid is represented by the de[498]*498fendants to be privately in the defendant Bob Conwell”; 5) Conwell was allowed by the Tourist Bureau to retain for himself all of the profits resulting from the sale of the magazines; and 6) the monies paid by the Tourist Bureau to Conwell constituted a dividend “in direct contravention of Article 1396-2.24, V.A.T.S.”. In addition to general relief, plaintiff prayed for: 1) an accounting for all services and income paid from tax monies of the City used by the Tourist Bureau and Conwell for the publication of the magazines; 2) an accounting of all profits generated by advertising in the magazines; and 3) a return of all tax monies to the general fund of the City of all profits derived from the publication and distribution of the magazines.

The Tourist Bureau, in the aforesaid motion, alleged: 1) Article IX, Section 18, of the City Charter does not authorize a suit to be brought by a private citizen “against a contractor with the City of Corpus Christi whereby the only claim by such plaintiff is that such contracting party has made an illegal distribution”; and 2) Bryce “is not such a party who may bring as a private citizen an action against this Defendant under Article 1396-2.24”. For those reasons, and those alone, the Tourist Bureau prayed that:

“[PJlaintiff’s Original Petition in its entirety be quashed for reason that same is brought by a party who has not the capacity or the authority to institute such suit . . and that on hearing that Plaintiff’s petition be abated in its entirety;”

The motion, which was sworn to and duly verified, was set down for hearing. Evidence was introduced at the hearing. Bryce, who was called as a witness by the Tourist Bureau, testified that he lived in Corpus Christi, owned property situated within the City, and paid taxes to the City. He also stated that he was not a member of the Tourist Bureau. He further testified that he did not have any complaint about the contracts which existed between the City and the Tourist Bureau, and that he filed this suit to recover money which was illegally spent by the Bureau.

Article IX, Section 18, of the City Charter was not introduced in evidence at the hearing. No evidence was offered at the hearing relating to whether the monies sued for were or were not dividends which were distributed to the members, directors or officers of the Tourist Bureau in contravention of Article 1396-2.24.

The aforesaid hearing was held on September 13, 1977. The trial judge granted the motion and dismissed the suit per written order, which was signed on October 13, 1977. The order of dismissal is couched in general terms, without indicating the basis for the ruling.

The City of Corpus Christi is not a party to this suit. There is no showing that the City authorized Bryce to file this suit. The allegation “James Bryce brings this action as a property taxpayer” of the City of Corpus Christi, and the allegation that Bryce sues to recover tax monies of the City illegally spent for the general fund of the City do not make the City a party to the action brought by Bryce. This suit is a controversy solely between Bryce, the Tourist Bureau and Conwell.

We know of no rule which permits the dismissal of a lawsuit in its entirety in response to a motion “to quash plaintiff’s cause of action”. However, the name by which a motion is designated does not determine its character, and we attach no controlling effect to the styling of the Tourist Bureau’s motion in this case. We look to the substance of the motion.

The Tourist Bureau, during oral argument, argued that the motion, in effect, is a plea in abatement and that the trial court properly sustained the plea and dismissed the suit. Whether the motion is, in essence, a plea in abatement is determined by the substance of the motion, and the effect which will be accomplished if it is granted. Smith v. City of Dallas, 404 S.W.2d 839 (Tex.Civ.App.—Dallas 1966, no writ); Armstrong v. Snapp, 186 S.W.2d 380 (Tex.Civ.App.—Fort Worth 1945, no writ).

[499]*499Generally speaking, the sustaining of a plea in abatement defeats the pending action but does not bar a revival of the action or a future action on the same cause. So, matters which merely postpone the enforcement of a right alleged in the petition are necessarily in abatement. The matter is decided, not by the form in which it is raised, but by its substance. 1 Am.Jur.2d, Abatement, Survival and Revival, § 2; 1 Tex.Jur.2d, Abatement and Revival, § 4.

A plea in abatement should not only show the grounds upon which the suit is improperly brought, but should also show how it should have been brought, and should always state facts, not conclusions of law. State v. Goodnight, 70 Tex. 682, 11 S.W. 119 (1888). When such a plea is sustained, the suit should not be dismissed until the plaintiff has been given a reasonable opportunity to amend, if it is possible to do so, and thereby remove the obstacle which defeated the suit initially filed. Even if the case-is dismissed, it is revived upon the removal of such obstacle which prevented its further prosecution in the first instance. Life Ass’n of America v. Goode, 71 Tex. 90, 8 S.W. 639 (1888); Humphrey v. National Fire Ins. Co., 231 S.W. 750 (Tex.Com.App.1921, opinion adopted). The sufficiency of the plea must be tested by its own allegations, and cannot be assisted by allegations in any other plea. Breen v. Texas and Pacific Railway Company, 44 Tex. 302 (1875); 1 Tex.Jur.2d, Abatement and Revival, § 71.

The result of sustaining a plea in abatement was pointed out in Texas Highway Department v. Jarrell, 418 S.W.2d 486, 488 (Tex.Sup.1967), by Chief Justice Calvert, who, speaking for the Court, said:

“. . . [a] plea in abatement, if sustained, would require an abatement of the claim or cause of action until some obstacle to its further prosecution was removed . . . ”

It was observed by Justice Garwood in Kelly v. Bluff Creek Oil Company, 158 Tex.

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Bryce v. Corpus Christi Area Convention & Tourist Bureau
569 S.W.2d 496 (Court of Appeals of Texas, 1978)

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569 S.W.2d 496, 1978 Tex. App. LEXIS 3419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryce-v-corpus-christi-area-convention-tourist-bureau-texapp-1978.