THORNHILL v. ELSKES

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Docket Number

No. 4468.

Attorney(S)

T. E. Kennerly, Houston, for appellants. George Clark, Waco, for appellee.

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Smart Summary

Factual and Procedural Background

This appeal arises from an order overruling the defendants' plea of privilege in a case involving the construction of a will and related estate matters. The parties in this appeal are the same as in a prior appeal, Thornhill v. Elskes, where the Court of Civil Appeals of Texas affirmed the overruling of the plea of privilege and construed the will, holding that beneficiaries take their devises burdened with debts and legal charges against the estate. Following remand, the plaintiff, as independent executrix and trustee, filed an amended petition seeking court directions regarding the payment of attorneys' fees, executor's commissions, and expenses, after partial distribution had been made in accordance with the prior opinion. The defendants contend that the amended petition asserts a new cause of action, warranting a new plea of privilege.

Legal Issues Presented

Whether the amended pleading asserting claims for attorneys' fees and related costs constitutes a new cause of action, thereby justifying a new plea of privilege.
Whether venue was properly maintainable in McLennan County under subdivision 4 of Article 1995, V.A.C.S.

Arguments of the Parties

Appellants' Arguments

The amended pleading asserts a new cause of action for attorneys' fees.
Because of this new cause of action, the defendants' new plea of privilege should have been sustained.

Appellee's Arguments

The amended pleading seeks relief incidental and ancillary to the original cause of action for construction of the will.
The original relief sought (construction of the will) was fully accomplished, making renewal of that prayer unnecessary.
The new plea of privilege after answer to the merits was not available and was properly overruled.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thornhill v. Elskes, 381 S.W.2d 99 (Tex.Civ.App.)	Venue properly maintainable under subd. 4, Art. 1995; construction of will	Referenced as prior appeal affirming venue and construing will; basis for current procedural posture
Foster v. Gulf, C. S.F.R. Co., 91 Tex. 631, 45 S.W. 376	New plea of privilege not available after answer to merits	Supported overruling of defendants’ new plea of privilege
Thomas v. Ellison, 102 Tex. 354, 116 S.W. 1141	New plea of privilege not available after answer to merits	Supported court’s denial of new plea of privilege
Gold v. Insall, 8 S.W.2d 542 (Tex.Civ.App.)	New plea of privilege not available after answer to merits	Reinforced court’s ruling on plea of privilege
Dickson v. McLaughlan, 51 S.W.2d 628 (Tex.Civ.App.)	New plea of privilege not available after answer to merits	Supported court’s decision
Adamson v. Hexter, 68 S.W.2d 568 (Tex.Civ.App.)	New plea of privilege not available after answer to merits	Used to justify overruling plea
Watson v. Harrington, 285 S.W.2d 390 (Tex.Civ.App.)	New cause of action in amended pleading (fraud claim)	Distinguished from current case as not involving new cause of action

Court's Reasoning and Analysis

The court examined the amended petition in light of the prior appeal and found that the amended pleading did not assert a new cause of action but rather sought relief ancillary and incidental to the original cause of action concerning the construction of the will. Since the original relief had been fully accomplished, it was unnecessary to renew that prayer. The court reasoned that the defendants’ new plea of privilege was not available after they had answered the merits of the case, citing established Texas precedents which hold that a plea of privilege cannot be renewed post-answer unless a new cause of action is asserted. The court distinguished the present case from Watson v. Harrington, where a genuinely new cause of action was pled in the amended pleading. Accordingly, the court affirmed the trial court’s order overruling the plea of privilege.

Holding and Implications

The court affirmed the trial court's order overruling the defendants' plea of privilege.

The decision confirms that an amended pleading seeking relief incidental to an original cause of action does not constitute a new cause of action sufficient to warrant a renewed plea of privilege after an answer to the merits. The ruling upholds venue in McLennan County and does not establish new precedent beyond affirming existing venue and procedural principles. The direct effect is that the defendants must litigate the attorneys' fees and related claims in the current venue.

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Gene THORNHILL et al., Appellants, v. Mrs. Trupy ELSKES, Appellee.

OPINION

PER CURIAM.

Defendants appeal from an order overruling their plea of privilege . We affirm. On a previous appeal, Thornhill v. Elskes, 381 S.W.2d 99, Tex.Civ.App., writ ref. n.r.e., we affirmed an order overruling defendants' plea of privilege in the same case.

The parties plaintiff and defendant in the case previously appealed were identical to those in the present suit. We held in the former case that venue was properly maintainable in McLennan County under subd. 4, Art. 1995, Vernon's Ann.Civ.St. The first eight pages of the original petition adopted in the controverting plea in that case are identical to the first eight pages in the amended pleading before the trial court in the present appeal. In the first pleading now abandoned, declaratory judgment construing a will was sought. We reversed the nihil dicit judgment on the merits in the former case and declared the construction of the will to be that beneficiaries take devises as set out in the opinion, 381 S.W.2d at 104, burdened with debts and legal charges against the estate. We remanded for further proceedings not inconsistent with the opinion.

The original petition prayed for orders directing the executors as to the manner of carrying out the provisions of the will, for order of distribution, for appointment of a receiver, for appraisal and partition, and other orders effectuating the court's interpretation of the will, for costs, 'attorneys fees' and general relief.

The amended petition filed after reversal and remand alleged the outcome of the former appeal and that partial distribution had been made in conformity to the opinion. It alleged debts remaining, costs of court due, and alleged specifically that plaintiff, the independent executrix and trustee had incurred attorney's fees in seeking construction of the will in good faith, and that defendants were also claiming attorneys' fees. The new pleading prayed for an order giving directions as to the amount and manner of payment of attorneys' fees, and executor's commissions and expense.

Appellants say the amended pleading asserts a new cause of action for attorneys' fees and therefore their new plea of privilege should have been sustained.

The amended pleading prayed only for relief which was incidental and ancillary to the cause of action originally asserted. Plaintiffs did not 'abandon' that portion of the remedy and relief originally sought, i.e., construction of the will; that had been completely accomplished. It would have been useless, meaningless and futile to renew the prayer for that relief. The new plea of privilege after answer to the merits was not available, and was properly overruled. Foster v. Gulf, C. S.F.R. Co., 91 Tex. 631, 45 S.W. 376; Thomas v. Ellison, 102 Tex. 354, 116 S.W. 1141; Gold v. Insall, Tex.Civ.App., 8 S.W.2d 542, writ dism.; Dickson v. McLaughlan, Tex.Civ.App., 51 S.W.2d 628, writ ref.; Adamson v. Hexter, Tex.Civ.App., 68 S.W.2d 568.

There is stated no new cause of action as in Watson v. Harrington, Tex.Civ.App., 285 S.W.2d 390, where an action for fraud in a trespass to try title case was first alleged in an amended pleading. We do not pass, of course, on the merits of the claim, but only on the issue of venue.

All points have been considered and are overruled.

Affirmed.