author: JAMES T. CAMPBELL, Justice.

text:
    David CRAWFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 07-02-0471-CV.
    Court of Appeals of Texas, Amarillo.
    Feb. 26, 2004.

      Charles A. Hester Jr., Hester McGlas-son & Cox, Canyon, for Appellant.

      C. Scott Brumley, Assistant County Attorney, for Appellee.
    Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

In this appeal David Crawford challenges a summary judgment for the State of Texas in a quo warranto proceeding removing him from the office of Constable for Precinct 3 of Potter County, and imposing a fine of $2012.05 and costs. He presents five issues for our review which he contends show error in the trial court’s judgment. Finding merit in a portion of his fourth issue, we sever that issue, remand it to the trial court and affirm the remainder of the judgment.

The relevant factual and procedural history of this litigation is essentially undisputed. In November 2000 appellant was elected to the office of constable of Potter County Precinct 3. He assumed that office on January 1, 2001. No defects in his assumption of the office have been alleged, however, at the time he took office, appellant did not have a peace officer license issued by the Texas Commission on Law Enforcement Officer Standards and Education. Section 86.0021(b) of the Local Government Code required appellant to provide the commissioners court with evidence he had received a permanent peace officer license within 270 days from the date he took office. Tex. Loe. Govt.Code Ann. § 86.0021(b) (Vernon Supp.2004). The statute goes on to provide that a constable who fails to do so “forfeits the office and is subject to removal in a quo warranto proceeding under Chapter 66 [of the] Civil Practice and Remedies Code.” Id. The 270th day after appellant took office was September 28, 2001. He does not dispute that day came and went without his having acquired a peace officer license.

The Potter County Attorney, who represents the State in this proceeding, sent a letter to appellant dated October 10, 2001, which recited the provisions of section 86.0021(b) and the fact that no evidence of a peace officer license had been presented. It also informed appellant “the commissioners request that you submit your resignation to be effective immediately. This resignation will result in a vacancy in the office of constable. The commissioners are willing to consider appointing you to fill the vacancy[J” Appellant did not submit his resignation and the county continued to pay him the salary set for the office. On November 13, 2001, the county filed a petition for leave to file information in quo warranto alleging the facts set out above, that appellant unlawfully held the office and that he had forfeited the office. It sought an order ousting appellant from the office of constable and imposing a fine for “usurping and/or unlawfully holding and executing the office.” It also sought an injunction preventing appellant from acting as a constable.

On a date not shown in the record the county discontinued salary payments to appellant. Appellant provided a letter to the county judge on December 27, 2001, in which he resigned from the office of constable effective immediately but purported to reserve “any claims for actual or punitive damages” from his term of office. On December 31, 2001, he filed a letter in the trial court in answer to the county’s petition, together with a copy of his resignation letter. That answer requested dismissal of the cause as moot based on his resignation. The record does not disclose an express ruling on the motion but does reveal the trial court issued a discovery control order on May 21, 2002, setting July 8, 2002, as the deadline for completion of discovery and providing any motions for summary judgment were to be filed by July 19, 2002.

The State filed a motion for summary judgment July 18, 2002. The grounds asserted in the motion were that there were no genuine questions of fact on whether appellant had forfeited his office by failing to present evidence of a permanent peace officer license within the required time, and that the State was “entitled, as a matter of law, to judgment finding [appellant] guilty of engaging in an act that, by law, caused a forfeiture of his office and ousting [him] from the office of constable for Precinct 3 of Potter County, Texas.” It also requested “that [appellant] be fined pursuant to section 66.003(3) of the Civil Practice and Remedies Code based upon his unlawful holding of the office of constable after he forfeited that office.”

The motion challenged appellant’s claim of mootness, relying on the “holdover provision,” of the Texas Constitution, Article XVI, Section 17, which provides “All officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified.” In its motion the State also alleged appellant “wrongfully appropriated $2,012.05” from Potter County, and requested imposition of a fine in that amount. The motion was supported by affidavits from the county judge, two employees of the county attorney’s office, both addressing service of discovery requests on appellant, and an employee of the county auditor’s office, stating appellant had been paid $20Í2.05 after September 2001.

The following day, appellant filed a formal answer to the suit, reasserting his claim of mootness. Appellant also filed his own motion for summary judgment seeking a take-nothing judgment against the State on the basis that he had resigned from the office of constable and the quo warranto proceeding was moot. In a later brief in the trial court, appellant characterized his mootness claim as a plea to the court’s jurisdiction.

October 1, 2002, the trial court rendered final summary judgment denying appellant’s plea to the jurisdiction and his request to join members of the commissioners court as defendants. It denied appellant’s motion for summary judgment and granted the State’s motion, removing him from office and declaring that office vacant. It also imposed a fine of $2012.05 for “usurping and for unlawfully holding and executing the office of constable” together with court costs.

After filing a motion for new trial complaining of the denial of a jury trial, abuse of discretion in imposing a fine, and challenging the trial court’s jurisdiction, appellant timely perfected this appeal. His five issues contend the trial court erred in: (1) finding it had jurisdiction; (2) removing an elected official from office without a trial by jury; (3) imposing a fine without conducting a trial by jury; (4) concluding appellant was not entitled to compensation and imposing a fine in the amount of the payments; and (5) rendering a declaratory judgment that appellant’s office was vacant, relief he contends was not authorized by statute.

Jurisdiction

It is fundamental that a court must have jurisdiction over the parties and the subject matter before it or any judgment it renders is void. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). Subject matter jurisdiction requires that there be a live controversy between the parties. State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). A moot case lacks justiciability. Patterson v. Planned Parenthood of Houston, 971 S.W.2d 439, 442 (Tex.1998). A case becomes moot if at any stage there ceases to be an actual controversy between the parties. National Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex.1999). The test for mootness is commonly stated as whether the court’s action on the merits would affect the rights of the parties. See VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993).

Despite the language of section 86.0021(b) of the Local Government Code that a constable who fails to provide evidence of receipt of a permanent peace officer license by the required date “forfeits the office,” neither party contends that appellant automatically vacated his office when he failed to become licensed by September 28, 2001. The parties cite a 2002 Texas Attorney General’s opinion stating that a constable who fails to provide evidence of licensure automatically forfeits the office but is not automatically removed from office, and may continue to perform the duties of the office until removed by a district court in a quo warran-to proceeding. Op. Tex. Atty Gen. No. JC-0514 (2002).

Chapter 66 of the Civil Practice and Remedies Code governs the conduct of quo warranto proceedings. The provisions relevant here include:

§ 66.001. Grounds.
An action in the nature of quo warranto is available if:
(1)a person usurps, intrudes into, or unlawfully holds or executes a franchise or an office, including an office in a corporation created by the authority of this state;
(2)a public officer does an act or allows an act that by law causes a forfeiture of his office;
§ 66.003. Judgment
If the person against whom the information is filed is found guilty as charged, the court:
(1) shall enter judgment removing the person from the office or franchise;
(2) shall enter judgment for the costs of prosecution in favor of the relator; and
(3) may fine the person for usurping, intruding into, or unlawfully holding and executing the office or franchise.

Tex. Civ. Prac. & Rem.Code Ann. § 66.001-.003 (Vernon 1997).

These provisions have their origins in statutes enacted at least as early as 1879. See Scolaro v. State ex rel. Jones, 1 S.W.3d 749, 758 (Tex.App.-Amarillo 1999, no pet.). Quo warranto actions are described as “those through which the State acts to protect itself and the good of the public generally.” Fuller Springs v. State ex rel. City of Lufkin, 513 S.W.2d 17, 19 (Tex.1974); see Hunt v. City of Longview, 932 F.Supp. 828, 834 (E.D.Tex.1995). With respect to such actions involving of ficeholders, the purpose of a quo warranto action is to determine disputed questions concerning a person’s right to hold an office and exercise its functions. State ex rel. Angelini v. Hardberger, 932 S.W.2d 489, 490 (Tex.1996); State ex rel. Jennett v. Owens, 63 Tex. 261, 270 (1885). In the opinion cited by the parties, the Attorney General has referred to quo warranto as generally the exclusive procedure to declare that an elected official is no longer qualified to occupy the office. Op. Tex. Atty. Gen. No. JC-0514 (2002).

On appeal, appellant again contends the State’s quo warranto proceeding against him became moot on his December 27, 2001 resignation from office and the trial court thereafter was without jurisdiction to hear the case. The State also reurges the position it took in the trial court, arguing that the court maintained jurisdiction over the quo warranto proceeding because appellant continued in office, despite his resignation, under Article XVI, Section 17.

A vacancy in the office of constable would be filled by appointment made by the commissioners court. Tex. Loc. Govt. Code Ann. § 87.041(a)(ll) (Vernon 1999). The Potter County commissioners court did not appoint a successor to the office following appellant’s December 2001 resignation.

As a preliminary matter, we agree with the conclusion reached by the Attorney General that a constable’s failure to obtain or maintain a permanent peace officer’s license does not, under Chapter 86 of the Local Government Code, automatically remove the constable from office but makes him subject to removal. Tex. Loc. Govt. Code Ann. § 86.0021(b) (Vernon Supp. 2004); Op. Tex. Atty Gen. No.. JC-0514 (2002). Under the procedures established by the legislature, something more than appellant’s failure to obtain the required license was necessary to cause a vacancy in the office. By the language of the statute, that “something more” was appellant’s removal by means of quo warranto.

In support of its argument that, under Article XVI, Section 17, appellant’s resignation was not effective to vacate his office and therefore did not render the quo war-ranto proceeding moot, the State initially cites Lowe v. State, 83 Tex.Crim. 134, 201 S.W. 986 (1918), which considered the effect of a district judge’s acceptance of appointment as a military officer in 1917. There the court found another provision of the constitution controlled its decision but referred also to Article XVI, Section 17, citing McGhee v. Dickey, 4 Tex.Civ.App. 104, 23 S.W. 404 (1893, no writ), for the proposition that under the holdover provision, a public officer “could not arbitrarily divest himself of the obligation and authority to perform the duties of his office until his successor qualified, and that although he resigned, and his resignation be accepted, [Article XVI, Section 17] would operate to continue him in office until his successor qualified.” Lowe, 83 Tex.Crim. 134, 201 S.W. 986. In McGhee, a county judge tendered his resignation, but it was not accepted and was subsequently withdrawn. Considering the holdover provision of the constitution, the court concluded “a public office does not become vacant by an unaccepted resignation,” noting “[t]he public necessity for continuity of official tenure is not left to the caprice of the office-holder. The contract for public service imposes a mutual obligation upon the officer and the public, which cannot be arbitrarily dispensed with by either party.” 23 S.W. at 405; see also Plains Common Consolidated School Dist. v. Hayhurst, 122 S.W.2d 322 (Tex.Civ.App.-Amarillo 1938, no writ).

This reasoning has been followed in other cases. Examples include Keen v. Featherston, 29 Tex.Civ.App. 563, 69 S.W. 983 (1902, writ ref'd), a trespass to try title suit that presented the issue whether a county surveyor’s resignation was effective, making him eligible to purchase land from the county. The commissioners court had accepted his resignation but appointed no successor. The court held the constitution continued the surveyor in office in spite of his resignation. Id. at 984.

The Texas Supreme Court cited Article XVI, Section 17 in holding an attempted resignation did not terminate a mayor’s term of office in Jones v. City of Jefferson, 66 Tex. 576, 1 S.W. 903 (1886). The evidence indicated that the mayor there sought to resign for the purpose of preventing service of process on the city for collection of a debt, not because of any disqualification to hold the office. Id. at 904.

The same reasoning appears in an Attorney General’s opinion cited by the State, Op. Tex. Atty. Gen. No. DM-498 (1998), opining that certain water district directors who become disqualified for office under Water Code section 49.072 and wish to cease acting as director before their successors qualify nonetheless hold over in office under Article XVI, Section 17.

Other authority suggests that an officeholder’s resignation may be effective to vacate the office, at least for some purposes. The most recent case in which our supreme court has considered a resignation by an otherwise qualified public official is Angelini, 932 S.W.2d 489. In that case, a justice of a court of appeals sent a letter in June 1996 to the governor advising of his intent to resign effective January 1, 1997, when he expected to assume the office of chief justice of the same court. Relying on provisions of the Election Code, the governor’s office treated the resignation as effective eight days after receipt, creating a vacancy, and the governor appointed a replacement. Id. at 490.

The State brought a quo warranto proceeding to oust the justice from office. The supreme court found the governor’s power of appointment was not invoked by the justice’s letter, and found no basis for his removal. Id. at 492. The court wrote “[i]f his service is ended by voluntary resignation, he controls the right to decide when he leaves.” Id. at 492. It addressed Article XVI, Section 17 by noting “the Constitution permits his service to be extended, see Tex. Const, art. XVI, § 17, but not truncated.” Id. This statement provides support for the proposition that the resignation of a qualified public official can be effective to terminate his service.

The most factually similar quo warranto case we have reviewed is Phagan v. State, 510 S.W.2d 655 (Tex.Civ.App.-Fort Worth 1974, writ ref'd n.r.e.). In that case, Pha-gan, a district attorney, was disbarred in May 1973, rendering him disqualified to hold that office. Id. at 657. He appealed the disbarment action. During the pen-dency of that appeal, in September 1973, the State brought a quo warranto proceeding to oust him from office. The trial court rendered summary judgment for the State in the quo warranto action in November 1973 and Phagan appealed that judgment also.

During the pendency of the appeal, Pha-gan submitted his resignation in March 1974. Id. at 658. Among the arguments advanced on appeal by Phagan was the assertion that his resignation rendered the case moot. With regard to the effect of the resignation the court wrote: “This resignation did render moot some of the questions involved in the quo warranto proceedings, but not all of them. The question of whether Phagan is or is not entitled to the emoluments of the office during the period between the date of the rendition of the decree appealed from and the date of his resignation from the office would hinge on the outcome of this appeal.” Id. at 658. We may infer from this comment that the court viewed the resignation as effective. The case, though, does not involve the effect of Article XVI, Section 17. See also Leonard v. Speer, 48 S.W.2d 474 (Tex.Civ.App.-Galveston 1932), writ dism’d, 56 S.W.2d 640 (1933) (resignation of sheriff after felony conviction created vacancy in office; Article XVI, Section 17 not discussed); Op. Tex. Atty. Gen. No. M-659 (1970) (resignation of county attorney effective, but he continued to hold over under Article XVI, Section 17).

The facts recited in Attorney General’s opinion JC-0514 are reflective of another class of quo warranto cases similar to but distinct from the facts present before us, those involving officers who are disqualified but continue to claim their office. Op. Tex. Atty. Gen. No. JC-0514 (2002).

Appellant generally acknowledges applicability of the holdover provisions of Article XVI, Section 17 of the Texas Constitution, but nonetheless , contends that no live or justiciable controversy triable by quo warranto can exist following his resignation because the sole function of the quo warranto action is to test his claim to the office, a claim he abandoned by resigning. Appellant cites Griffith v. State ex rel. Ainsworth, 226 S.W. 423 (Tex.Civ.App.-El Paso 1920, no writ), for the proposition that a quo warranto action is moot and must be dismissed when the official “no longer holds office or claims a continued right to hold the office.” We view Griffith more narrowly, finding that it held a quo warranto proceeding must be dismissed on expiration of a term of office. Id. It contained no discussion of the effect of resignation by an officer whose term had not expired, nor does it discuss the effect of Article XVI, Section 17. Griffith is not dispositive.

There are distinctions in the facts of this case and those involved in each of the cases and opinions discussed. The officials involved in the cited cases resigned for a variety of reasons, some personal, some related to their offices. Too, as noted, most of those cases involved officeholders who continued to be qualified to hold their offices at the time of their resignation, while appellant’s resignation occurred after he became disqualified for, and statutorily forfeited, the office of constable. It is difficult to draw from the authorities we have reviewed a clear-cut rule to be applied here. Significantly, however, none of the authorities we have surveyed in which it is suggested that an officeholder’s resignation would be effective despite Article XVI, Section 17 involve situations in which no successor is likely to be appointed. Appellant blames the Potter County commissioners court for that circumstance here, arguing that its failure to appoint a successor constable brings the holdover provision of Article XVI, Section 17 into play. He provides, though, no persuasive argument explaining how the commissioners’ decision not to appoint a constable affects the application of the constitutional provision, or how the decision operates to deprive the district court of jurisdiction. We cannot read into the constitution an exception to Article XVI, Section 17 for instances in which the governmental body having responsibility for determining whether and when to fill a vacancy in office determines not to do so. Moreover, to hold that Article XVI, Section 17 has no application here would be to sanction the very circumstance that provision of our constitution was designed to prohibit, a public officeholder’s unilateral decision to vacate his office. We agree with the State that appellant’s December 27, 2001, resignation was not effective to vacate his office. The parties maintained a legally cognizable interest in the completion of the procedure established by statute for termination of appellant’s public service.

Further, the State’s pleadings in the quo warranto action asked the trial court to impose a fine on appellant pursuant to section 66.003(3) of the Civil Practice and Remedies Code. In the later proceedings, appellant resisted the imposition of that fine, and still resists its imposition on appeal. The proceeding not having been rendered moot by appellant’s resignation, the dispute over the levy of a fine also maintained the live controversy. We overrule appellant’s first issue.

Imposition of Fine

Before addressing appellant’s second issue, we consider his fourth issue, which concerns the trial court’s imposition of a fine pursuant to section 66.003(3) of the Civil Practice and Remedies Code. Consideration of that issue necessitates reviewing the specific statutory grounds authorizing quo warr-anto proceedings in the factual and procedural history of this case.

As noted, section 66.001 of the Civil Practice and Remedies Code contains two grounds authorizing quo warranto proceedings relevant here. The first is applicable when “a person usurps, intrudes into, or unlawfully holds or executes a franchise or an office[.]” The second is available when “a public officer does an act or allows an act that by law causes a forfeiture of his office.” Tex. Civ. Prac. & Rem.Code Ann. § 66.001 (Vernon 1997). Section 66.003 authorizes the imposition of a fine, but only for usurping, intruding into, or unlawfully holding and executing the office, not for doing or allowing an act causing a forfeiture of the office. Tex. Civ. Prac. & Rem.Code Ann. § 66.003(3) (Vernon 1997).

The State’s petition and information alleged appellant “forfeited the office of Constable for Precinct 3 of Potter County, Texas, but refuses to vacate that office. Accordingly the writ of quo warranto should be issued against [appellant.]” It characterized section 66.001(1) of the Civil Practice and Remedies Code as providing that quo warranto is available “if a person unlawfully holds or executes an office created by authority of the State of Texas,” and that appellant “should be fined for usurping and/or unlawfully holding and executing the office of Constable[.]” The State thus proceeded against appellant on both a “usurping” claim under section 66.001(1), and a “forfeiture” claim under section 66.001(2).

Under the well-settled rules applicable to summary judgment, the summary judgment movant must demonstrate entitlement to judgment as a matter of law. Tex.R. Civ. P. 166a. A motion for summary judgment under Rule of Civil Procedure 166a(c) must state the specific grounds on which the movant contends it is entitled to judgment. McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 339-41 (Tex.1993). Here, the State’s motion for summary judgment was based on appellant’s failure to obtain a permanent peace officer’s license and section 86.0021(b) of the Local Government Code. The State did not contend or point out evidence that appellant otherwise usurped the office. The references in the motion to appellant’s holding the office unlawfully were based on the statutory forfeiture.

The evidence of appellant’s forfeiture of office by failure to obtain a peace officer’s license, standing alone, does not authorize the imposition of a fine. To hold that a forfeiture of office also supports a finding the officer has usurped or unlawfully holds the office would ignore the distinction made by the legislature when it authorized a fine for one but not the other. See Tex. Civ. Prac. & Rem.Code Ann. § 66.003(3) (Vernon 1997).

For purposes of our consideration of this issue we assume, without deciding, that usurping and unlawful holding of office are independent grounds for removal under section 66.001(1). “Usurpation” implies an intrusion, encroachment, seizure or assumption of office or authority, typically an office or authority that belongs to another. See Black’s Law Dictionary 1545 (6th Ed.1990). Here the undisputed facts show first, that appellant took office lawfully after an unchallenged election, and second, that no other person claimed the office. Neither the summary judgment motion, or evidence, support a conclusion that appellant was a “usurper” of the office of constable as that term is recognized in the law.

With regard to the State’s position that appellant unlawfully held or executed the office, it fails to offer any basis for reconciling its argument that appellant continued to hold over in office after September 28, 2001, by virtue of Article XVI, Section 17, with its position that his occupation of the office after the same date was “unlawful.” In this context, those positions are mutually exclusive. If Article XVI, Section 17 of the state constitution required appellant to continue to perform the duties of the office of constable regardless of the forfeiture of his office, see Op. Tex. Atty. Gen. No. JC-0514 (2002), or his resignation, see Op. Tex. Atty. Gen. No. DM-493 (1998), then his mere continued occupation of the office or execution of its duties was not “unlawful” for purposes 'of section 66.003. Appellant was not accused of actions constituting the unlawful execution of the office. The State’s motion for summary judgment alleged only that he continued to accept compensation after forfeiting the office and that he failed to perform the duties of constable.

We hold neither the State’s motion for summary judgment or the summary judgment evidence supports a judgment for the imposition of a fine on the basis that appellant was a usurper of the office of constable or that he held or executed that office unlawfully. Because a court’s authority to impose a fine in a quo warranto proceeding is limited to instances when the official usurps, intrudes into or unlawfully holds and executes an office, the trial court’s imposition of a fine in this case was not authorized and must be reversed. See Shields v. State, 936 S.W.2d 711, 712 (Tex.App.-Austin 1996, no writ) (quo warranto judgments limited to remedies authorized by statute); Tex. Civ. Prac. & Rem.Code Ann. § 66.003(3) (Vernon 1997). We sustain appellant’s fourth issue to that extent. This disposition resolves appellant’s third issue challenging the imposition of a fine. It also resolves appellant’s fifth issue to the degree he contends the fine was an improper judgment for damages.

Right to Jury Trial

Appellant’s second issue assigns error to his removal without a trial by jury. He relies on Article V, Section 24 of the Texas Constitution, which provides, in relevant part:

[CJonstables, and other county officers, may be removed by the Judges of the District Courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefor being set forth in writing and the finding of its truth by a jury.

He argues this provision precludes resolution of this proceeding by summary judgment. Appellant does not, however, point out any fact issue present in the case that would require impaneling a jury on the question of his removal from office. In the absence of a controverted issue of fact, a litigant cannot properly say that the grant of summary judgment deprived him of his constitutional right to a jury trial. Wyche v. Works, 373 S.W.2d 558, 561 (Tex.Civ.App.-Dallas 1963, writ ref'd n.r.e.); see Ramirez v. Flores, 505 S.W.2d 406, 414 (Tex.Civ.App.-San Antonio 1973, writ ref'd n.r.e.). We overrule appellant’s second issue.

Declaration of Vacancy

Appellant’s fifth issue assigns error to that part of the trial court’s judgment declaring the office of constable vacant, arguing that declaration exceeded the scope of a permissible judgment in a quo warranto proceeding. We disagree the recitation in the judgment was an improper declaratory judgment, finding it merely in explication of the order removing appellant from office. We overrule appellant’s fifth issue.

Conclusion

Our disposition of appellant’s fourth issue requires reversal of that part of the trial court’s judgment imposing a fine. When both parties move for summary judgment and the trial court grants one motion and denies the other, the appellate court reviews the summary judgment evidence of both parties, determines all questions presented, and renders the judgment that the trial court should have rendered. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex.1999). In so doing, though, the appellate court still must adhere to the rules that each movant must carry its own burden to establish its right to judgment, Miller & Freeman Ford, Inc. v. Greater Houston Bank, 544 S.W.2d 925, 926 (Tex.1976); Russell v. Panhandle Producing Co., 975 S.W.2d 702, 708 (Tex.App.-Amarillo 1998, no pet.), and that summary judgment may not be rendered for a party on a ground not encompassed within its motion in the trial court. McConnell, 858 S.W.2d at 341. Here the only ground on which appellant moved for summary judgment was mootness. In addressing appellant’s first issue we concluded the matter was not moot. Consequently, the trial court did not err in denying appellant’s motion for summary judgment. Although we have found that the evidence in the summary judgment record does not support imposition of a fine, we may not render judgment for appellant on that issue. Therefore, we sever the issue concerning imposition of a fine and remand it to the trial court. We affirm the remainder of the trial court’s judgment.

      . At oral argument the parties represented this date was December 27, 2001.

        . See Act of July 9, 1879, 16th Leg. S.S., Ch 48, § 1, 1879 Tex. Gen. Laws 75.

      . Under more recent statutes, other procedures also may serve that purpose. See, e.g., Tex. Occ.Code Ann. § 1701.302 (Vernon Pamph.2004) (removal of elected law enforcement officers for failure to obtain peace officer license).

      . Article XVI, Section 17 is not absolute. It does not obligate an officeholder who is removed from office to continue to perform the duties of office, even though a successor is not appointed. See Manning v. Harlan, 122 S.W.2d 704, 707 (Tex.Civ.App.-El Paso 1939, writ dism'd).

      . See Tex. Elec.Code Ann. § 201.023 (Vernon 2003).

      . Cases of this type include Scolaro v. State ex rel. Jones, 1 S.W.3d 749 (Tex.App.-Amarillo 1999, no pet.) (county court at law judge continued to claim office against assertions of disqualification); Welch v. State ex rel. Long, 880 S.W.2d 79 (Tex.App.-Tyler 1994, writ denied) (constable claiming office removed for prior felony conviction); Diaz v. State, 68 S.W.3d 680 (Tex.App.-El Paso 2000, pet. denied); Ramirez v. State, 973 S.W.2d 388 (Tex.App.-El Paso 1998, no pet.) (removal of city officials), and Robinson v. State, 28 S.W. 566 (Tex.Civ.App.1894, no writ) (quo warranto proper to resolve claim to office of sheriff who failed to give bond).

      . For example, the State’s motion alleged: "defendant's acts and omissions conclusively demonstrate that [he] has, by law, forfeited but continued to unlawfully hold the office of constable[.]”


source: Caselaw Access Project

author: DON H. REAVIS, Justice. BRIAN QUINN, Justice.

license: Public Domain

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Appellant, v. Lilith BRAINARD, et al., Appellees.
    No. 07-03-0170-CV.
    Court of Appeals of Texas, Amarillo.
    March 1, 2004.
    Order and Opinion Overruling Rehearing April 26, 2004.
    Gregory R. Ave, Kimberly A. Wilson, Touchstone, Bernays, Johnston, Beall & Smith & Stollenwerek, L.L.P., Dallas, for Appellant.
    Bryan W. Scott, Houston, for Appellee.
    Before QUINN and DON H. REAVIS and CAMPBELL, JJ.
   OPINION

DON H. REAVIS, Justice.

Presenting a sole issue, Trinity Universal Insurance Company challenges the award of attorney’s fees to Lilith Brainard, Sally Brainard Wicker, E. Swasey Brai-nard, II, Amy Brainard, Berklee Brainard Clements, Sena Brainard and the Estate of Edward H. Brainard, II, following a jury trial seeking recovery upon Trinity’s underinsured motorist (UIM) contract. By a sole cross issue, the Brainards contend the trial court erred in failing to award prejudgment intei'est on the $1,010,000 damages found by the jury as to the underinsured’s conduct before offsetting prior settlements and PIP benefits. Because neither party presents any issues challenging the sufficiency of the evidence, we will review only such history necessary to address the two questions of law presented. Based upon the rationale expressed herein, we reverse and render in part and affirm in part.

Trinity issued an automobile liability policy to Brainard Cattle Company, E.S.F. Brainard, et al, for a policy period commencing August 26, 1998 through August 26, 1999. Among other provisions, the policy included an uninsured/underinsured motorists (UIM) insurance endorsement. On July 1, 1999, Edward H. Brainard, II, an insured under the policy, sustained fatal injuries in a head on collision with a motorized work over rig owned and operated by an employee of Premier. After the Brai-nards commenced their wrongful death action on January 19, 2000, against Premier and its employee, they discovered that the limits of liability insurance for Premier did not exceed one million dollars. This information prompted the Brainards to make a written claim for UIM benefits. Trinity acknowledged receipt of the claim and requested supporting information.

By their third amended petition the Brainards joined Trinity and, in addition to claims under articles 21.21 and 21.55 of the Texas Insurance Code Annotated (Vernon Supp. & Pamph. Supp.2004), claims for common law breach of duty of. good faith/unfair settlement practices, and claims under the Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com.Code Ann., §§ 17.41 — 17.885 (Vernon 2002 & Supp.2004), (DTPA), the Brai-nards alleged:

• Plaintiffs are covered parties under this policy and have performed all conditions precedent to receiving benefits under the policy; and
• Defendant Trinity is in breach of contract for failing to pay benefits. Its obligation to pay UIM benefits is not conditioned upon a judgment fixing such damages. The Defendant has an obligation to pay when its investigation reveals that there is no question as to liability and that damages exceed the policy limits of the responsible party. Defendant Trinity has information which makes it incumbent upon them to pay benefits, as there is no question of liability on the part of the other Defendants and that the damages far exceed the One Million dollars of insurance possessed by the other Defendants. This obligation became all the more apparent when the original Defendants delivered their policy limits on November 20, 2000.

The coverage provision of the UIM endorsement in the policy provides:

We will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an Insured, or property damage caused by an accident. The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
Any judgment for damages arising out of a suit brought without our written consent is not binding on us. If we and you do not agree as to whether or not a vehicle is actually uninsured, the burden of proof as to that issue shall be on us.

Without admitting liability, the insurance carrier for Premier paid its policy limits of $1,000,000 to the Brainards in settlement and by order dated January 5, 2001, the trial court dismissed with prejudice the claims against Premier and its employee, but did not dismiss the claims against Trinity.

By order of June 11, 2001, among other things, the trial court denied Trinity’s first motion for severance. However, on November 29, 2001, following our decision in In Re Trinity Universal Ins. Co., 64 S.W.3d 463 (Tex.App.-Amarillo 2001, orig. proceeding), the trial court granted Trinity’s second motion for severance and/or plea in abatement in its entirety, effectively severing all extra-contractual claims, including Brainards’ claims for breach of duty of good faith and fair dealing, violations of articles 21.21 and 21.55 of the Insurance Code and violations of the DTPA.

Following a four day jury trial, a wrongful death charge was submitted to the jury. By its verdict, the jury awarded the surviving wife of the deceased $500,000 and each of the five children $100,000 and the estate $10,000 for funeral expenses, making the total award for actual damages $1,010,000. Also, the jury awarded reasonable attorney’s fees to the Brainards in the amount of $100,000. Following motions for new trial and other post-judgment motions by both parties and after allowing an offset of $1,005,000, the trial court signed its judgment that the Brai-nards recover from Trinity the sum of $5,000 in damages and $100,000 in attorney’s fees, but denied their request for prejudgment interest.

Two questions of law are presented for our determination, to-wit: (1) whether in an action on the UIM policy, an award of attorney’s fees is authorized under section 38.001 of the Texas Civil Practices and Remedies Code Annotated (Vernon 1997); and (2) whether the Brainards were entitled to an award of prejudgment interest on the $1,010,000 in damages found by the jury as to the underinsured’s conduct before offsetting prior settlements and PIP benefits.

Attorney’s Fees

By its sole issue, Trinity contends the trial court erred in awarding the Brai-nards $100,000 in attorney’s fees in conjunction with the prosecution of the UIM claim because there had been no determination of the operator’s liability (and damages incurred by the Brainards) prior to the rendition of the judgment at issue. We agree.

The Supreme Court has consistently held that attorney’s fees may not be awarded “unless permitted by statute or by contract between the parties,” and the availability of attorney’s fees under a statute is a question of law. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999). In their prayer and without referencing any statutory authority or contractual provision as support or authority, the Brainards sought an award of attorney’s fees. However, from the remarks of the trial court during the charge conference upon Trinity’s objection to the inclusion of the attorney’s fees question and from the Brainards’ contention on appeal, section 38.001(8) of the Civil Practice and Remedies Code was the basis of the attorney’s fees based on a claim on an oral or written contract. Although the interpretation of insurance contracts is governed by the same rules as interpretation of other contracts, in addition to the written provisions of the contract, the Brainards alleged as their breach of contract claim that Trinity had “an obligation to pay when its investigation [revealed] that there [was] no question as to liability and that damages [exceeded] the policy limits of the responsible party.” See Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex.1997).

Restated, Trinity agreed to pay damages that the Brainards “were legally entitled to recover from” Premier or its operator because of bodily injuries sustained by Edward Brainard. The phrase “legally entitled to recover” is not defined in the UIM provision, but it has been determined to mean that the Brainards “must be able to show fault on the part of the uninsured motorist and the extent of the resulting damages.” See Franco v. Allstate Insurance Company, 505 S.W.2d 789, 792 (Tex.1974). From the statement in them brief that the suit’s “primary focus is to quantify damages which the Brai-nards could have recovered from Premier and its driver,” the Brainards recognize that the “extent of the resulting damages” is controlling. In this context, this provision is not a condition precedent relating to the formation of the contract as discussed in Dillon v. Lintz, 582 S.W.2d 394, 395 (Tex.1979), but instead relates to the performance under the contract. Where, as here, a promise to pay is made subject to a condition precedent, no breach occurs until the condition occurs. See id.; see also Paris Milling Company v. Wooldridge, 473 S.W.2d 224, 227 (Tex.Civ.App.-Amarillo 1971, no writ); Insurance Corp. of America v. Webster, 906 S.W.2d 77, 81 (Tex.App.-Houston [1st Dist.] 1995, writ denied). By our prior opinion in In Re Trinity, 64 S.W.3d at 467, we held that the Brainards’ claim for UIM benefits was contractual in nature and unlike personal injury protection coverage, the provisions of the UIM endorsement condition payment of benefits upon a determination of liability of the UIM motorist and damages.

The question of an award of attorney’s fees in a UIM action has received mixed analysis by five other courts of appeals. In Sprague v. State Farm Mut. Auto. Ins. Co., 880 S.W.2d 415, 416-17 (Tex.App.-Houston [14th Dist.] 1993, writ denied), and Sikes v. Zuloaga, 830 S.W.2d 752, 754 (Tex.App.-Austin 1992, no writ), the courts held that attorney’s fees were not recoverable before determination of the fault of the underinsured motorist and the amount of damages. However, in Allstate Ins. Co. v. Lincoln, 976 S.W.2d 873, 875-76 (Tex.App.-Waco 1998, no pet.), Whitehead v. State Farm Mut. Auto. Ins., 952 S.W.2d 79, 89 (Tex.App.-Texarkana 1997), rev’d on other grounds, 988 S.W.2d 744 (Tex.1999), and Novosad v. Mid-Century Ins. Co., 881 S.W.2d 546, 552 (Tex.App.-San Antonio 1994, no writ), the courts took the contrary position and allowed attorney’s fees. Based upon this record and the absence of a jury finding of breach of contract as alleged by the Brainards, we conclude the decisions in Sprague and Sikes present the proper disposition of the question of attorney’s fees. Trinity’s sole issue is sustained.

Prejudgment Interest

By their cross-issue, the Brainards contend the trial court erred in failing to award prejudgment interest on the $1,010,000 damages as to the underin-sured’s conduct before offsetting prior settlements and PIP benefits and entering judgment against Trinity. They contend:

The real issue in this appeal is whether interest on the award against the under-insured, Premier, is recoverable from the UIM carrier when such damages are within the UIM policy limits. The Brai-nards contend that the Supreme Court’s precedent and the Texas Statutes require such recovery.

We disagree. Throughout our analysis we must take into consideration the fact that the jury was instructed to find the actual damages without including interest.

Article 5.06-1 of the Insurance Code (Vernon Supp.2004), entitled “Uninsured or Underinsured Motorist Coverage” applies to the Trinity UIM endorsement. Paragraph (5) provides:

The underinsured motorist coverage shall provide for payment to the insured of all sums which he shall be legally entitled to recover as damages from owners or operators of underinsured motor vehicles because of bodily injury or property damage in an amount up to the limit specified in the policy, reduced by the amount recovered or recoverable from the insurer of the underinsured motor vehicle.

(Emphasis added). In addition, provision D to the UIM endorsement entitled “Limit of Insurance” provides in part as follows:

Subject to this maximum, our limit of liability will be the lesser of:

1. The difference between the amount of a covered insured’s damages for bodily injury or property damage and the amount paid or payable to that covered insured for such damages, by or on behalf of persons or organizations who may be legally responsible; and
2. The applicable limit of liability for this coverage.

In Stracener v. United Serv. Auto. Ass’n, 777 S.W.2d 378 (Tex.1989), expressly recognizing misinterpretation of the statute by some courts of appeals, as material here, the Court held:

[w]e also hold that the set off provided for in an article 5.06-1(5) is to be subtracted from the amount of actual damages incurred as a result of the negligence of the underinsured motorist rather than from the limits specified in the underinsured motorist insurance policy.

(Emphasis added). Id. at 380. The action of the trial court in applying the credit of prior settlement and PIP payment to the amounts of actual damages found by the jury without awarding any interest was consistent with the construction of article 5.06-l(c) by the Court as well as the express limitation of Trinity’s liability contained in the contract. Moreover, in clear and precise terms, Trinity agreed to pay damages because of “bodily injury or property damage,” but did not agree to pay interest on the damages or the amount of a judgment if obtained against the underin-sured operator, less the offset.

As material to this appeal following the severance of the Brainards’ claims based on violations of the DTPA and articles 21.21 and 21.55 of the Insurance Code, their action against Trinity was not an action for wrongful death or personal injury and property damage tort claim; rather, it constituted a claim for breach of contract. See Franco, 505 S.W.2d at 792-93 (holding that an action on a UIM contract is not a wrongful death action and is ex contractu rather than ex delicto). By prayer in their pre-severance pleading the Brainards sought prejudgment interest; however, they did not identify any statute or contractual provision supporting an award of prejudgment interest. Similar to Henson v. Southern Farm Bureau Cas. Ins., 17 S.W.3d 652, 653 (Tex.2000), the relationship between the Brainards and Premier was that of injured party and tortfeasor, while the relationship between the Brainards and Trinity is that of contracting parties. Accordingly, section 304.102 of the Texas Finance Code, which authorizes prejudgment interest in wrongful death, personal injury, and property damage cases has no application as to Trinity. See Tex. Fin.Code Ann. § 304.101 (Vernon Supp.2004); see also Johnson & Higgins of Tx. v. Kenneco Energy, 962 S.W.2d 507, 529-30 (Tex.1998) (holding that section 304.101, formerly Tex.Rev.Civ. Stat. Ann. art. 5069-1.05, § 6(a), allowing statutory prejudgment interest applies only to wrongful death, personal injury, and property damage cases).

Moreover, as above noted, the claims against Trinity in the trial court were grounded in contract, not tort. Although the Brainards recognize that the real issue is the amount Trinity is obligated to pay under its contract, they suggest that statutes awarding interest in tort cases apply in this suit on contract. However, on appeal, parties are restricted to the theory on which the case was tried. See Davis v. Campbell, 572 S.W.2d 660, 662 (Tex.1978); see also Dittoe v. Jones, 220 S.W.2d 315, 319 (Tex.Civ.App.-Fort Worth 1949, writ ref'd n.r.e.). Accordingly, we may not consider the Brainards’ appellate theory regarding prejudgment interest based on interest applicable to tort claims per sections 304.101 and 304.102 of the Finance Code as grounds to reverse the judgment of the trial court.

We have not overlooked the Brainards’ references to Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985), Horizon/CMS Healthcare Corporation v. Auld, 34 S.W.3d 887 (Tex.2000), and Johnson & Higgins, 962 S.W.2d at 507; however, we do not consider these cases controlling because they do not present questions involving a suit on contract for UIM coverage. Further, although Allstate Indem. Co. v. Collier, 983 S.W.2d 342 (Tex.App.-Waco 1998, pet. dism’d by agr.), references Stracener, 777 S.W.2d at 378, it does not address that portion of Stracener in which the court discusses subtraction of prior settlement from the amount of actual damages. Similarly, Menix v. Allstate Indem. Co., 83 S.W.3d 877 (Tex.App.-Eastland 2002, pet. denied), does not reference Stra-cener nor discuss a provision such as the one in Trinity’s UIM endorsement entitled “Limit of Insurance.” Brainards’ cross-issue is overruled.

Accordingly, that portion of the trial coui't’s judgment awarding the Brainards attorney’s fees in the amount of $100,000 is reversed and judgment is hereby rendered that no attorney’s fees are awarded; in all other respects the judgment is affirmed.

ON MOTION FOR REHEARING

By our opinion of March 1, 2004, we reversed the judgment of the trial court awarding Lilith Brainard, Sally Brainard Wicker, E. Swasey Brainard, II, Amy Brainard, Berklee Brainard Clements, Sena Brainard, and the Estate of Edward H. Brainard, II attorney’s fees in the amount of $100,000, rendered judgment that no attorney’s fees be awarded, and in all other respects affirmed the judgment of the trial court denying the Brainards any recovery for prejudgment interest.

Having considered the Brainards’ motion for rehearing, the motion for rehearing is overruled for the reasons stated in the March 1, 2004 opinion, together with the reasons set out by Justice Quinn in his opinion on rehearing.

QUINN, J., concurring.

BRIAN QUINN, Justice.

I write separately to address that aspect of the Brainards’ motion for rehearing that deals with the award of prejudgment interest. My interpretation of the record leads me to conclude that the situation before us likens to that in Henson v. Southern Farm Bureau Cas. Ins. Co., 17 S.W.3d 652 (Tex.2000) as opposed to that in Menix v. Allstate Indem. Co., 83 S.W.3d 877 (Tex.App.-Eastland 2002, pet. denied). In the former, the complainant sought prejudgement interest arising from the supposed breach of contract committed by Texas Farm Bureau, the company that issued the uninsured or under-insured policy. The Supreme Court held that such could not be recovered as part of damages against Texas Farm Bureau because it was not obligated to pay any benefit until judgment was entered against the under-insured tortfeasor. Henson v. Southern Farm Bureau Cas. Ins., 17 S.W.3d at 654. The same was not true in Menix, however. There, prejudgment interest was not sought as part of the recovery due as a result of any breach by Allstate but as part of the damages committed by Swed-lund, the under-insured tortfeasor. And, because Allstate agreed, per its insurance policy, to pay Menix “ ‘the damages which a covered person is legally entitled to recover from the owner or operator of an uninsured/underinsured motor vehicle because of bodily injuries,’ ” it had to pay prejudgment interest that accrued upon the damages caused by Swedlund’s conduct as part of its contractual liability.

Thus, in comparing Henson and Menix, it is imperative to first determine whether prejudgment interest is being sought from the insurer as damages resulting from the insurer’s own purported breach of contract or as part of the damages caused by the uninsured or under-insured tortfeasor. And, given my reading of the Brainards’ live pleading, it appears as though prejudgment interest was sought as damages arising from the purported contractual and statutory breaches committed by Trinity Universal Insurance Co., not as a part of the damages caused by the under-insured’s tort. Therefore, because Menix is inapplicable while Henson is not, I vote to overrule the motion for rehearing.

      . At trial, Trinity objected to the admission of any evidence regarding attorney's fees. Also, at the charge conference, Trinity objected to “the charge on the grounds that attorney’s fees is not a proper measure of damages in this type of case. Therefore, question number 9 should not be submitted to the juiy.” Trinity’s objection was overruled and the question was submitted.

      . See brief for appellee/cross appellant on their direct appeal point at page 11.

      . The jury awarded Lilith Brainard $100,000 for pecuniary loss, $200,000 for loss of companionship and society and $200,000 for mental anguish and awarded each of the five children $50,000 for loss of companionship and society, and $50,000 for mental anguish.


text:
    Phyllis Kay WELLS, Appellant, v. Marion Kane BARROW and Amanda Belle Barrow, Appellees.
    No. 07-02-0435-CV.
    Court of Appeals of Texas, Amarillo.
    March 4, 2004.

      Lee Ann Reno, Mark White, Sprouse Shrader Smith P.C., Amarillo, for appellant.

      Robert L. Templeton, Templeton Smi-thee Hayes Heinrich & Russell, L.L.P., Amarillo, for appellees.
    Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Appellant, Phyllis Kay Wells, challenges a judgment for appellees Marion Kane Barrow and Amanda Belle Barrow, rendered on a jury verdict for personal injuries arising from a car collision. Appellant presents a single point of error challenging the composition of the jury which heard the case. We affirm.

The basic facts of the collision are not in dispute. Appellant was the driver of the third of three cars stopped at a traffic signal. While waiting, her foot slipped off the brake pedal and hit the accelerator. She struck the car in front of her, which in turn struck the first car. Appellee Amanda Barrow was the front seat passenger in that vehicle. She was approximately 33 weeks pregnant at the time of the collision. Appellees brought suit against appellant for negligence.

The case was called for trial in June 2002. The jury venire consisted of 42 members. After voir dire, the trial court sustained ten challenges for cause. The parties exercised six peremptory strikes each. Three of those peremptory strikes overlapped, leaving 23 venire members. The sixth “unstruck” venire member was Linda Pearson. When the court clerk called the names of panel members who would compose the jury, she mistakenly omitted Pearson’s name, resulting in another panel member, Sylvia McDade, serving on the jury. Neither party brought the error to the attention of the court at that time. After a two-day trial, the jury returned a unanimous verdict for appel-lees.

After the verdict, but before rendition of judgment, appellant filed a motion for new trial asserting, among other grounds, that the jury was not properly selected. Appellant’s motion argued in support of her challenge to the jury that she was “entitled to a new trial because the jury chosen by the parties was not the jury that was impaneled to hear the case.” No contention was made that McDade was disqualified; she was not challenged for cause at trial. The trial court overruled the motion for new trial and rendered judgment for appellees. Appellant timely perfected appeal from that judgment.

Appellant’s first argument on appeal is that the exclusion of Pearson violated her constitutional right to “select a jury.” A party’s right to a trial by jury is established by Article I, Section 15 of the Texas Constitution and the Seventh Amendment to the U.S. Constitution. Article V, Section 13 of the Texas Constitution specifies that petit juries in district court shall have twelve members. None of the authority relied on by appellant supports her asserted right to “select” the members of a jury. The right to a jury trial encompasses a right to have the jury selected in substantial compliance with the applicable procedural statutes and rules. Heflin v. Wilson, 297 S.W.2d 864, 866 (Tex.Civ.App.-Beaumont 1956, writ ref'd) (jury panel erroneously chosen by jury commission method rather than required jury wheel method). Under those statutes and rules the parties have a role in excluding prospective jurors who are disqualified or unfit for service as jurors, by virtue of bias or prejudice or otherwise. See Tex. Gov’t Code § 62.105 (Vernon 1998); Tex.R. Civ. Proc. 229. The statutes and rules also allow parties a limited opportunity to strike prospective jurors even when bias or prejudice cannot be shown, see Tex.R. Civ. Proc. 282-38, and provide for the involvement of the parties in some decisions to excuse prospective jurors, see Tex. Gov’t Code § 62.110(c) (Vernon 1998) (requiring approval of parties for excuse of prospective juror for economic reason). Our state constitution, statutes and rules cannot be said, though, to grant litigants the right to “select” jury members. Restated, the right to a jury trial is a right to have fact questions resolved by an impartial jury. See Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 709 (Tex.1989). That right is distinguishable from a right to have particular persons serve on the juiy.

Appellant’s argument is also premised on her position that the jury in this case was not selected in substantial compliance with the Rules of Civil Procedure. Appellant cites McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex.1995), in support of her argument that the clerk’s failure to call Pearson’s name when announcing the jury in accordance with “the simple, clear directive of Rule 234 is a shocking lack of compliance with that rule which resulted in fundamental, constitutional error.” McDaniel did not speak to the selection of a jury. It concerned the requirement of Article V, Section 13 of our state constitution and Rule of Civil Procedure 292 that a district court jury consist of twelve members unless not more than three jurors die or “be disabled from sitting.” The trial court had dismissed a juror during trial pursuant to Rule 292 because the juror informed the court she could not return after a recess due to local flooding. Id. at 252. A divided Supreme Court found such temporary inability to return to the courthouse was not the type of disability contemplated by Article V, Section 13 or Rule 292. Id. at 253.

We find persuasive two cases in which procedural errors in formation of the veni-re or jury were the basis for appeal. In City of San Augustine v. Johnson, 349 S.W.2d 653 (Tex.Civ.App.-Beaumont 1961, writ ref'd n.r.e.), a county judge failed to administer a statutorily required oath to the county clerk on delivery of the jury lists. Id. at 654. The court found no reversible error, distinguishing Heflin on the basis that the error did not involve the entire system of jury selection but “only the oversight of one step or link in the chain of proceedings under the proper law.” Id. at 654.

In Rivas v. Liberty Mutual Ins. Co., 480 S.W.2d 610 (Tex.1972), our Supreme Court considered the effect of the failure to follow a rule requiring members of a jury panel be listed in the order their names were drawn from the jury wheel. It was undisputed that names were listed in the order the summons letters were collected by the bailiff. Id. at 611. Relying on Heflin, the court of appeals held the procedure used, and the denial of a jury shuffle, raised an inference of harm and reversed. Liberty Mutual Ins. v. Rivas, 466 S.W.2d 823 (Tex.Civ.App.-Corpus Christi 1971), reversed, 480 S.W.2d 610. The Supreme Court disagreed, finding the procedure employed “substantially complied” with the underlying purpose of the rule to create a random list. 480 S.W.2d at 612. Of particular significance here is the court’s rejection of an argument based on the contention that denial of the requested jury shuffle resulted in a different jury than would have heard the case had the request been granted. While conceding the procedure followed was not the proper one, the court concluded the method used did not probably cause, and was not reasonably calculated to cause, the rendition of an improper judgment. It reversed the court of appeals and affirmed the judgment of the trial court. Id.

We find Rivas controlling in the case now before us. In each, there was a mistaken failure by court personnel to follow a procedural rule, the result of which was that different venire members made up the jury. As in Rivas, too, appellant has failed to make any showing that any member of the jury was not qualified to serve.

Rivas disposes of appellant’s argument that a procedural error in selecting a jury is fundamental constitutional error not subject to waiver or harmless error analysis. Rejection of appellant’s argument is consistent with opinions considering similar challenges. In Berner v. Southwestern Public Service Co., 517 S.W.2d 924 (Tex.Civ.App.-Amarillo 1974, writ ref'd n.r.e.), this court held presentation of complaints regarding the selection of a jury in a motion for new trial are ordinarily too late. Id. at 925. This rule applies not only when the party is aware of the irregularity but also when he might have discovered it by inquiry. Id. See also Lopez v. State, 437 S.W.2d 268, 269 (Tex.Crim.App.1968) (applying rule in criminal context). While this authority supports the proposition that such complaints are subject to waiver, our disposition is not dependent on a finding of waiver.

Alternatively, appellant contends for the application of the “relaxed” harmless error standard of review utilized by the Fort Worth court of appeals in Carr v. Smith, 22 S.W.3d 128, 135 (Tex.App.-Fort Worth 2000, pet. denied). This standard requires the complaining party to show that the trial was materially unfair, without having to demonstrate specific harm. Id. Appellant argues the existence of hotly contested issues at trial establishes that the error resulted in a materially unfair trial. Accepting that there were several contested issues here, we nonetheless find the “materially unfair” standard inapplicable. The standard has been applied primarily in cases involving peremptory strikes. Lopez v. Foremost Paving, Inc., 709 S.W.2d 643 (Tex.1986); Garcia v. Central Power & Light Co., 704 S.W.2d 734 (Tex.1986); Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex.1979); Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965); see Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818 (Tex.1980); Dunlap v. Excel Corp., 30 S.W.3d 427 (Tex.App.-Amarillo 2000, no pet.). This case does not involve the potentially unfair advantage that can result from the awarding of peremptory strikes. Nor did the clerk’s error here result in the kind of adverse effect on the randomness of the jury or venire that the Fort Worth court found in Carr, 22 S.W.3d at 133-35, and in Mendoza v. Ranger Ins. Co., 753 S.W.2d 779 (Tex.App.-Fort Worth 1988, writ denied). Nor does it involve the type of prejudicial misconduct that concerned the majority in Mann v. Ramirez, 905 S.W.2d 275, 283 (Tex.App.-San Antonio 1995, writ denied). The contention that a closely contested case substitutes for a showing of harm was rejected in Rivas. 480 S.W.2d at 612. Following Rivas, we find this record does not demonstrate reversible error. Tex.R.App. Proc. 44.1. We overrule appellant’s issue and affirm the judgment of the trial court.

      . Other than a citation to the Seventh Amendment, appellant presents no federal law argument in support of her appeal. Nor does she assert federal law affords her greater rights than the Texas Constitution.


author: PHIL JOHNSON, Chief Justice.

text:
    Isriel McBRIDE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 07-03-0143-CR.
    Court of Appeals of Texas, Amarillo.
    March 15, 2004.
    Isriel McBride Jr., Tennessee Colony, TX, pro se.
    Wade Jackson, Asst. Criminal Dist. Atty., Lubbock, TX, for State.
    Before PHIL JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   ORDER

PHIL JOHNSON, Chief Justice.

By opinion dated December 12, 2003, we dismissed the appeal in this matter for want of jurisdiction. Appellant, Isriel McBride, Jr., did not file a motion for rehearing. He filed a motion for extension of time to file a Petition for Discretionary Review (PDR), which was granted by the Court of Criminal Appeals.

Pending before the Court is “Appellant’s Pro Se Motion in Response to Court of Criminal Appeal’s Order, In Which to File a Petition for Discretionary Review” which was filed on March 5, 2004. Attached to the motion is a copy of a postcard from the Court of Criminal Appeals dated January 30, 2004, referencing COA # 07-03-00143-CR. The postcard notifies appellant that his pro se motion for an extension of time to file a PDR has been granted and that the time to file a PDR has been extended to March 12, 2004. The postcard also states that the PDR must be filed with the Court of Appeals. See Tex.R.App. P. 68.2.

Appellant’s motion in this court states that he will be unable to file a PDR on or before March 12, 2004. He seeks relief in the nature of either (1) an order that the trial court hold an evidentiary hearing on matters relevant to allegations made in his motion, or (2) a bench warrant directing that appellant be brought from Anderson County, where he is incarcerated in the TDCJ-Institutional Division, to the trial court in Lubbock County, so that he can present evidence.

Our plenary power expired 60 days following entry of our judgment. See TRAP 19.1(a). If appellant invokes the Court of Criminal Appeals’ jurisdiction by timely filing a PDR, see Garza v. State, 896 S.W.2d 192, 194-95 (Tex.Crim.App.1995), we will have jurisdiction to reconsider and correct or modify our opinion or judgment. See TRAP 50. In the absence of a timely-filed PDR, however, we do not have jurisdiction to take any action on appellant’s motion other than to dismiss it for want of jurisdiction.

The motion is dismissed for want of jurisdiction.


author: DON H. REAVIS, Justice.

text:
    APRIL SOUND MANAGEMENT CORP., Appellant, v. CONCERNED PROPERTY OWNERS FOR APRIL SOUND, INC., a Texas Non-profit Corporation and Developer for April Sound Subdivision, Appellee.
    No. 07-03-0229-CV.
    Court of Appeals of Texas, Amarillo.
    March 23, 2004.

      Jackson D. Wilson II, Christopher M. McDowell, Brown McCarroll, L.L.P., Dallas, for Appellant.

      Richard A. Sheehy, Sheehy, Serpe & Ware, P.C., Houston, for Appellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

DON H. REAVIS, Justice.

April Sound Management Corp. appeals from a judgment rendered on a traditional motion for summary judgment declaring that Concerned Property Owners for April Sound, Inc. (CPO, Inc.), as developer, may, pursuant to the deed restrictions applicable to the April Sound Subdivision at any time and from time to time, adjust, alter, waive, discontinue, or abandon all or any part of the maintenance charge, including without limitation, the recreational charge and the possible “additional” charge as set forth in the deed restrictions applicable to the various sections within the April Sound Subdivision. The judgment further declares that should CPO, Inc., as developer, discontinue or abandon the recreational charge, then there can be no basis for any “additional” charges to be added to the recreational charge. By its issues, Management Corp. questions whether (1) the FDIC possessed any right of the original developer at the time the FDIC purportedly transferred developer’s rights to CPO, Inc.; (2) CPO, Inc. has any right, as a matter of law, to possess or exercise rights reserved to the original developer as set forth within the deed restrictions, and, if so; (3) it has the right, in its sole discretion, to adjust, alter, waive, discontinue, or abandon all or any part of the maintenance charge set forth within the deed restrictions when it has never held nor owned any property or interest in the subdivision; (4) the trial court erred in refusing to abate the lawsuit until the lot owners in the subdivision and the April Sound Property Owners Association were properly joined in the lawsuit; (5) the trial court erred by granting declaratory relief when all persons who have or claim any interest that would be affected by the declaration were not made parties to the lawsuit as required by section 37.006 of the Texas Civil Practice and Remedies Code; (6) the trial court erred by denying Management Corp.’s claims for declaratory relief; (7) the trial court erred by eliminating Management Corp.’s rights held by virtue of the deed restrictions; (8) CPO, Inc. established as a matter of law that there were no genuine issues of material fact precluding summary judgment on its declaratory relief claims; (9) CPO, Inc. established as a matter of law that there were no genuine issues of material fact that Management Corp. was not entitled to recover on its claims for declaratory relief; and (10) the trial court erred in denying Management Corp.’s motion for new trial. Based upon our analysis of issues four and five, we reverse and render in part, and reverse and remand in part.

The April Sound Subdivision and the April Sound Country Club on Lake Conroe were developed together in 1972 by joint venture comprised of Southwest Savings Association as the original developer and other members to be part of a master-planned community. Among other provisions and features to serve the 2200 lots, the recorded deed restrictions provided for the development’s security, fire protection, streets, common areas, and recreational amenities including a clubhouse with dining room facilities, swimming pool, boat launching facilities, bridle trails, tennis courts, plus other facilities to be developed from time to time. Southwest Savings subsequently changed its name to United Savings Association of Texas, which was succeeded by the FDIC as manager of the resolution fund. CPO, Inc. contends that after all or substantially all of the lots were sold, pursuant to the provisions set forth in the deed restrictions, the FDIC transferred all of the duties and prerogatives of the developer to CPO, Inc.

The deed restrictions contain provisions creating a maintenance fund by imposing a maintenance charge to be assessed to each lot in the subdivision. As material here, per section 6.01, each lot is subject to an annual maintenance charge which, according to section 6.02, shall include amounts relating to recreational facilities payable monthly and in advance to April Sound Recreation Corporation. Also, section 6.05 provides in part:

The maintenance charges collected shall be paid into the Maintenance Fund to be held and used for the benefit, directly or indirectly, of the subdivision; and such Maintenance Fund may be expended by the Developer for any purpose which, in the judgment of the Developer will tend to maintain the property values in the subdivision ... and the decision of the Developer with respect thereto shall be final, so long as made in good faith.

According to section 6.08(a), the maintenance charge includes

a sum to be determined by the Board of Trustees of April Sound Property Owners Association (such sum is hereinafter referred to as the “property charge”), and a sum to be determined by the Board of Trustees of April Sound County [sic] Club (such sum is hereinafter referred to as the “recreational charge”). The Recreational Corp. may add sum [sic] additional sum to the Maintenance Charge as in its judgment is necessary to carry out the objectives for which the Maintenance Charge is to be used and such additional sum shall be deemed to be part of the “recreational charge.... ” The recreational charge shall be secured by the lien referred to in paragraph 8.06 hereof.

Then, in section 6.09, after recognizing the right of the “Board of Directors of the April Sound Recreation Corporation to determine and assess the exact amount of the Maintenance Charge and Recreational Charge,” the amount of the initial monthly charge, including the recreational charge, is set at $12.00 per month. In summary, section 6 designates and provides:

• the “property” charge is to be determined by the Board of Trustees of April Sound Property Owners Association;
• the “recreational charge” is to be determined by the Board of Trustees of April Sound County [sic] Club (Recreation Corp.);
• the monthly maintenance charge is payable to April Sound Recreation Corp. and is secured by a lien per the covenants;
• the “exact amount of each maintenance charge” is to be determined by the Developer; and
• the Board of Directors of the April Sound Recreation Corporation has the “right” to “determine and assess the exact amount of the Maintenance Charge and Recreational Charge.”

In the late 1970’s Southwest Savings transferred its rights in the recreational facilities and the maintenance fund to April Sound Recreational Corporation. Subsequently, Management Corp. purchased the recreational facilities. In connection with the acquisition, Management Corp. commenced administering the operations of the April Sound Property Owners Association and the subdivision infrastructure.

Contending it had succeeded to the status and rights of the original developer by the transfer from the FDIC, CPO, Inc., instituted this suit against Management Corp. seeking declaratory relief that it has the right, power, and authority under the deed restrictions to abandon the recreational charge component of the maintenance charge, including the “additional sum” for operations of the recreational facilities at April Sound. Among other things, CPO, Inc. alleged that Management Corp. breached numerous fiduciary duties to the property owners, wrongfully collected recreational charges in excess of $15,000,000, and property charges in the amount of $4,764,834. CPO, Inc. also alleged that at least $4,400,000 of trust funds were wrongfully used and converted by Management Corp. CPO, Inc. did not, however, seek to recover any damages against Management Corp. In addition to its general denial, by verified plea, Management Corp. asserted that CPO, Inc. was not entitled to recover in the capacity in which it sued and that there was a defect in parties because required persons or entities had not been made parties to the suit. Also, as material here, Management Corp. alleged that declaratory judgment should not be granted because all parties required for relief had not been joined and a judgment or decree would not terminate the uncertainty or controversy.

CPO, Inc. filed a traditional motion for summary judgment and without reciting the specific grounds therefor, generally alleged that as movant it had succeeded to the rights of the developer. The motion was supported by summary judgment evidence, authorities, and briefing. Tex.R. Civ. P. 166a(c). Referencing the applicable deed restrictions, CPO, Inc. sought a declaration that it had the right to discontinue all or any part of the maintenance charge and discretion to discontinue and forever eliminate the recreational and additional charges. Management Corp. filed its response to the motion together with its motion to abate the proceeding.

Contending CPO, Inc. had not joined all necessary parties and that there was another case pending, Management Corp. filed a second motion to abate. In this regard, Management Corp. alleged that elimination of the recreational charge would result in serious harm to each lot owner because each lot owner may be excluded from the club and the potential loss of the club would seriously and irreparably injure the property values within the subdivision. Citing sections 37.006(a) and 37.008 of the Texas Civil Practice and Remedies Code (Vernon 1997), Management Corp. sought abatement of the case which was denied by written order. The trial court also signed an order granting CPO, Inc.’s motion for summary judgment, which remained interlocutory because the motion did not address the counterclaim of Management Corp. CPO, Inc. then filed a motion for final summary judgment addressing the counterclaim. The trial court did not award CPO, Inc. damages nor attorney’s fees, but declared that CPO, Inc., as developer, may, pursuant to the deed restrictions, at any time, and from time to time, adjust, alter, waive, discontinue, or abandon all or any part of the maintenance charge including without limitation, the recreational charge and the possible “additional charge.” The judgment further declared that if CPO, Inc. discontinues or abandons the recreational charge, there can be no basis for any “additional” charges to be added to the recreational charge.

By its fourth issue, Management Corp. contends the trial court erred by refusing to abate the lawsuit until the lot owners in the subdivision and the April Sound Property Owners Association were properly joined in the lawsuit, and by its fifth issue, contends the trial court erred by granting declaratory relief when all persons who have or claim any interest that would be affected by the declaration were not made parties to the lawsuit as required by section 37.006 of the Code. We agree and combine our analysis of the issues.

Abatement of an action is proper where it is apparent that all parties whose interest would be affected by the action have not been made parties. See Looney v. Sun Oil Co., 170 S.W.2d 297, 300 (Tex.Civ.App-Texarkana 1943, writ ref'd w.o.m.) (holding that the suit “in equity” should have been abated for want of necessary parties where it was apparent that the interests of two parties would be affected by the suit). Here, without joining the owners of the lots in the subdivision, CPO, Inc., sought and obtained an order declaring that pursuant to the deed restrictions it could, at any time and from time to time, adjust, alter, waive, discontinue, or abandon all or any part of the maintenance charge and recreational charge. Section 37.006(a) of the Code entitled Parties provides:

(a) [w]hen declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties. A declaration' does not prejudice the rights of a person not a party to the proceeding.

(Emphasis added). The purpose of this section is to avoid a multiplicity of suits because a declaratory judgment does not prejudice the rights of a person not a party to the proceeding. Blythe v. City of Graham, 303 S.W.2d 881, 883 (Tex.Civ.App.-Fort Worth 1957, no writ).

“Must” creates or recognizes a condition precedent. Tex. Gov’t Code Ann. § 311.016(3) (Vernon 1998); see Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). Accordingly, if the owners of the lots in the subdivision “would be affected” by the declaratory judgment sought and ordered, they “must” be joined as parties and, as in Looney, the suit should have been abated. 170 S.W.2d at 300. Because there is no litmus paper test to utilize in determining whether the lot owners should have been made parties, we will consider the declaration made by the trial court in the context of the deed restrictions and applicable property law.

“Property” is a word of comprehensive meaning and extends to every species of valuable right and interest in real and personal property. Womack v. Womack, 141 Tex. 299, 172 S.W.2d 307, 308 (Tex.1943). Also, a property interest consists not merely in its ownership and possession, but includes the unrestricted right of use, enjoyment, and disposal. Mann v. Risinger, 423 S.W.2d 626, 632 (Tex.Civ.App.-Beaumont 1968, writ ref'd n.r.e.). The right to own and have exclusive dominion over private property is a sacred one, and it is a universal principle of law that the right to own property carries with it the right to control and dispose of it in such manner as not to contravene law or public policy. See Ford v. Grand United Order of Odd Fellows, 50 S.W.2d 856, 859 (Tex.Civ.App.-Beaumont 1932, writ dism’d w.o.j.). The rules governing the amenities and recreational facilities associated with the use and enjoyment of real estate should be definite and certain so as to lend stability and predictability of land titles. In a concurring opinion in Reed v. Wylie, 597 S.W.2d 743, 751 (Tex.1980), Justice Spears wrote:

It is axiomatic that rules of property are not to be tampered with lightly or easily changed. Persons rely on rules of property in the conduct of their affairs and are entitled to depend on the stability of those rules without periodic alterations occasioned by the changing winds of the day.

Although Justice Spears was concerned with the question of whether lignite at the surface was a mineral or part of the surface, his remarks concerning reliance on the controlling rules or regulations and the need for predictability and stability also apply to the deed restrictions.

A detailed analysis of the deed restrictions is not required but in summary they include provisions for architectural controls of buildings and structures, designation of lots as either “Lakefront Lots” or “Town and Country Lots,” and include general restrictions on use, i.e., residential use, set back lines, and the like. Also, section V contains special restrictions applicable to lakefront lots regarding piers, boat slips, walls, planters, and other improvements. In addition, the maintenance, recreational, and property charges applied to recreational features such as the clubhouse, swimming pool, boat launching facilities, bridle trails, tennis courts, and other common areas, and were payable monthly and secured by a lien on the lots.

Additionally, section VI includes detailed provisions for the determination of the amount of the various charges. It allocates the authority to make certain determinations and administrative decisions to the Board of Trustees of the April Sound Property Owners Association, the Board of Trustees of April Sound Country Club, the April Sound Recreational Corp., and the developer. It is significant to note that section 6.05 authorizes the expenditure of funds in such a manner as “will tend to maintain the property values in the subdivision,” which involves the exercise of judgment and could have a significant impact on property values of lots in the subdivision in the future. Construing the deed restrictions in light of the intent of the plan for development of the subdivision, the recreational opportunities presented by the development were designed to provide the owners with significant rights, benefits, and recreational opportunities incidental to ownership of property in the development. See Parker v. Delcoure, 455 S.W.2d 339, 343 (Tex.Civ.App.-Fort Worth 1970, writ ref'd n.r.e.); see also Brite v. Gray, 377 S.W.2d 223, 225 (Tex.Civ.App.-Beaumont 1964, no writ),

The general rule that some of the owners of property in a subdivision may not release or modify applicable restrictions without the concurrence of others who own property in the subdivision is grounded upon the vesting of rights and privileges in lots in common with other lot owners in the subdivision. See Smith v. Williams, 422 S.W.2d 168, 172 (Tex.1967). In Letsos v. Katz, suit was brought against the subdivision committee but the court held that the individual lot owners had a joint interest with the committee and were indispensable parties to the action. 489 S.W.2d 317, 319 (Tex.Civ.App.-Houston [1st Dist.] 1972, no writ).

This action for declaratory judgment is not a suit against a lot owner to enforce compliance with one or more lot restrictions which would not implicate rights of other lot owners. Instead, it is an action for a declaration that the developer has the power to adjust, alter, waive, discontinue, or abandon all or any part of the recreational charge notwithstanding the provision in section 6.08(a) of the deed restrictions that the recreational charge is to be determined by the Board of Trustees of April Sound Country Club (Recreational Corp.). Moreover, the payment of the charges, including the recreational charge, is secured by a hen on the property.

The declaratory relief sought by CPO, Inc. implicates significant incidental rights of the owners of lots in the subdivision, and in that context, presents a situation similar to the issues presented in Simpson v. Afton Oaks Civic Club, Inc., 117 S.W.3d 480, 483 (Tex.App.-Texarkana 2003, pet. filed Nov. 6, 2003). Simpson sought a declaratory judgment to nullify the mandatory property owners’ association. Concluding the declaratory relief that Simpson sought would, in effect, change the rights and interests of each property owner in the association, the court held that all property owners were necessary parties to the suit and their absence divested the trial court of subject matter jurisdiction which could be raised for the first time on appeal. Id. at 484.

Moreover, the underlying case may present one of those rare situations which requires the presence of indispensable parties to the controversy whose absence deprives the court of jurisdiction. See Travis Heights Imp. Ass’n v. Small, 662 S.W.2d 406, 413 (Tex.App.-Austin 1983, no writ); see also Nuchia v. Woodruff, 956 S.W.2d 612, 617 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). Thus, considering that property rights are fundamental and the benefits that would be achieved by stabilizing uncertainty regarding deed restrictions, and because the interests of non-party lot owners would be affected by the declaration, we hold the trial court erred in not granting Management Corp.’s plea in abatement as required by section 37.006(a) of the Texas Civil Practice and Remedies Code. Issues four and five are sustained. Our disposition of issues four and five pretermits consideration of the remaining issues.

Accordingly, the judgment of the trial court signed February 12, 2003, and the order denying the second motion to abate of Management Corp. signed April 25, 2002, are reversed; rendering the judgment the trial court should have rendered, the plea in abatement of Management Corp. is granted. See Tex.R.App. P. 43.2(c). Otherwise, the cause is remanded to the trial court for further proceedings.

      . Management Corp. does not present an issue contending the trial court erred in granting the motion for summary judgment as authorized by Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).

      . According to CPO, Inc.'s brief, the subdivision is composed of "at least 17 different sections,” and by its original petition, CPO, Inc. alleged that each of the 17 sections was subject to separate deed restrictions. CPO, Inc. alleges the 17 sets of restrictions are identical "in pertinent part.” However, the record presented here contains the reservations, restrictions, and covenants for section five only.

      . See Dahl v. Hartman, 14 S.W.3d 434, 436 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Dahl, a subdivision resident, filed a declaratory judgment action against the defendants, consisting of other residents who were seeking to renew deed restrictions and form a property owners association. The defendants filed a plea in abatement claiming that all 333 property owners were necessary parties who had not been served. The trial court agreed and ordered Dahl to serve all affected property owners. When Dahl failed to comply with the trial court's order, the case was dismissed. On appeal, the court held the trial court did not abuse its discretion in dismissing Dahl's action. Id. at 437.

      . In Simpson, the question of joinder of parties was not raised by plea in abatement in the trial court but rather was raised as fundamental error for the first time on appeal. The opinion in Simpson had not been released when the trial court signed the order on February 12, 2003.