Wednesday, May 9, 2012

Wife's affidavit construed as a pleading, making her a co-plaintiff with the husband who brought suit pro se and could not file for her because he does not have a license to practice law

Nonattorney husband filed pro se suit against neighbor and wife executed attached affidavit, in which she referred to herself as plaintiff, but she did not herself sign the pleading. Court holds that her affidavit was sufficient to make her a pro se plaintiff. Subsequent nonsuit by husband did not include the wife, wherefore wife's cause of action remained pending and the county court in which the action was filed did not lose plenary jurisdiction to transfer the case to district court more than 30 days after husband's nonsuit.



In his first issue on appeal, HUSBAND contends the District Court never had jurisdiction, thus its judgment is void. Specifically, HUSBAND argues that WIFE was never a party to the suit because she did not sign the petition, and, as a result, his nonsuit of April 25, 2007, which was approved by the County Court on April 30, 2007, disposed of all claims then pending in the suit. As a result, HUSBAND argues that the County Court lost plenary power on May 25, 2007, or at the very latest, on May 30, 2007. Therefore, HUSBAND contends that the County Court’s June 5, 2007 order transferring venue to the District Court was void, and the District Court lacked subject-matter jurisdiction. In his third issue on appeal, HUSBAND contends the trial court erred in overruling his motion for summary judgment, which was based on the same ground. Because this argument hinges on whether WIFE was ever a party to the suit, we address that issue first.

HUSBAND argues that because he is not a lawyer, he could not represent his wife, and that because she never signed the Original Petition, she was never a party to the suit. It is true that HUSBAND cannot represent his wife unless he is a member of the State Bar of Texas or otherwise qualifies for the limited practice of law. See Tex. Gov’t Code Ann. § 81.102 (Vernon 2005); Magaha v. Holmes, 886 S.W.2d 447, 448 (Tex. App.—Houston [1st Dist.] 1994, no writ).

However, under the facts of this case, we conclude that WIFE did in fact represent herself pro se in the filing of the lawsuit. While it is true that WIFE did not sign the petition, she did sign an affidavit attached to the petition in which she averred, “I am the Plaintiff.” And, not only was her affidavit attached to the petition with the notation “Plaintiff Original Petition” appearing in its lower left corner, paragraph 8 of the petition provides, “Plaintiff, Mrs. [LAST NAME], attaches Exhibit 2 as her affidavit and fully incorporates it herein by reference in this petition.” By signing the affidavit referring to herself as a Plaintiff, attaching that affidavit to the petition, and incorporating it by reference into the petition, WIFE has complied with the requirement that a pro se petition be signed. See Tex. R. Civ. P. 57. Additionally, a pleading shall not be deemed defective because of something that can be supplied by an exhibit attached to and referenced in a petition. See Tex. R. Civ. P. 57. WIFE ’s affidavit, which is attached to and incorporated by reference in the petition, provides her signature, which was missing from the petition itself. Thus, we conclude that WIFE was a party to the lawsuit.

We next consider what effect WIFE ’s participating in the lawsuit had on the County Court’s plenary power. HUSBAND argues that because his nonsuit disposed of all claims pending at the time it was filed, the trial court lost plenary power 30 days thereafter, which was several days before it signed the order to transfer jurisdiction to the District Court. Thus, HUSBAND contends the order transferring jurisdiction was void and the District Court never acquired subject-matter jurisdiction.

However, like the petition, the “Notice of Nonsuit with Prejudice to Refile” was signed only by HUSBAND, but not WIFE . Further, the notice provides, “COMES NOW Plaintiff, HUSBAND, and pursuant to Rule 162 of the Texas Rules of Civil Procedures serves notice on this Court that he is taking a nonsuit . . . on all claims against [DEFENDANT]” The nonsuit does not reference WIFE or her claims at all. Because Tony cannot represent WIFE , see Magaha, 886 S.W.2d at 448, and the nonsuit he filed does not even purport to do so, it did not dispose of WIFE ’s claims against [DEFENDANT]. Because WIFE ’s claims remained pending, the County Court retained plenary power over the suit when it transferred jurisdiction to the District Court. Thus, the transfer provided the District Court with subject-matter jurisdiction.[1]

We overrule HUSBAND’s first and third issues on appeal.

In issue two, HUSBAND contends that the June 5, 2007 order transferring the case to District Court was void. Specifically, HUSBAND argues that under Texas Rule of Civil Procedure 87, he was entitled to 45 days’ notice of a hearing on a motion to transfer venue. However, Rules 86 and 87 apply to motions to transfer venue from one county to another. See Tex. R. Civ. P. 86 & 87. The present case was being transferred from the County Court to the District court pursuant to Tex. Gov’t Code Ann. § 74.121(b)(1) (Vernon 2011), thus the 45 days’ notice required by Rule 87 is not applicable.

We overrule HUSBAND’s second issue on appeal.

SOURCE: HOUSTON COURT OF APPEALS - 01-09-00545-CV - 5/3/12 [names of pro se parties replaced with terms husband and wife; name of Defendant likewise substituted]

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