
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-02-00768-CV


John B. Gordon and Ruth A. Gordon, Appellants

v.

Randall C. Staudt, Appellee




FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
NO. 01-0002-CC1, HONORABLE DONALD HUMBLE, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


	After the justice court dismissed a suit filed by appellants John B. Gordon and Ruth
A. Gordon against appellee Randall C. Staudt, the Gordons filed the same suit in the county court
at law.  Staudt filed a plea in abatement, asserting that the Gordons' suit was barred by limitations
and asking that the suit be dismissed.  The county court dismissed the Gordons' suit with prejudice,
and this appeal follows.  We will reverse the dismissal and remand the suit for further proceedings.

Factual and Procedural Background
	In 1995 to 1996, Staudt ran for the Texas Senate.  In May 1995, John Gordon agreed
to provide consulting and support services for Staudt's campaign; John testified that because he and
Staudt were friends, he agreed to work on Staudt's campaign for less than such work would usually
cost.  The Gordons contend that Staudt agreed to pay about $1,200 a month for John's services, but
Staudt contends that he agreed to pay only as much as he could afford from his limited campaign
budget.  Staudt also contends that John stopped working on the campaign several weeks before the
primary was held on March 8, 1996; the Gordons contend that John continued providing services
for about two weeks after the primary.  In January and March 1997, the Gordons sent Staudt two
demand letters stating that he owed them $6,000.  Staudt refused to pay, believing he did not owe
them any money.  
	On March 6, 2000, the Gordons sued Staudt in justice court, seeking $4,800 for
consulting services rendered to Staudt's campaign.  Following a hearing in which Staudt introduced
bills submitted by the Gordons during the campaign, it became apparent that the amount in
controversy was $7,100, not $4,800, and therefore exceeded the justice court's $5,000 jurisdictional
limit.  See Tex. Gov't Code Ann. § 27.031(a)(1) (West Supp. 2004).  On December 18, 2000, the
justice court dismissed the Gordons' suit without prejudice, and on January 2, 2001, the Gordons
refiled their suit in the county court at law, seeking $7,100 plus attorney's fees.  The Gordons relied
on section 16.064 of the civil practice and remedies code to toll the running of the statute of
limitations against their claims. (1) See Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (West 1997). 
Staudt filed a plea in abatement, arguing that the Gordons filed their claim in justice court "with
intentional disregard of proper jurisdiction" and could not therefore rely on section 16.064 to toll the
running of limitations, and asking that the Gordons' claims be dismissed.  The Gordons filed a reply,
asserting that they had filed in the justice court believing in good faith that the damages were within
that court's jurisdictional limits.  Following an evidentiary hearing, the county court signed an order
sustaining Staudt's plea in abatement and dismissing the Gordons' suit with prejudice, (2) and the
Gordons appealed. (3)
 

Was Staudt's Limitations Issue Properly Decided as a Plea in Abatement?
	Generally, a plea in abatement seeks to defeat the subject suit but would not bar the
plaintiffs from bringing another suit on the same cause of action, while a defense that defeats the
cause altogether should be pleaded in bar.  Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354 (Tex.
App.--San Antonio 1999, pet. denied); Taliaferro v. Warren, 30 S.W.2d 393, 394 (Tex. Civ.
App.--Dallas 1930, no writ); see Kelley v. Bluff Creek Oil Co., 309 S.W.2d 208, 214 (Tex. 1958). 
A plea in abatement has different consequences than a plea in bar or a plea to the jurisdiction.  A plea
in abatement, if sustained, requires an abatement of the cause until the obstacle to its further
prosecution is removed, while a plea to the jurisdiction, if sustained, requires a dismissal, and a plea
in bar, if sustained, requires a judgment that the claimant take nothing.  Texas Highway Dep't v.
Jarrell, 418 S.W.2d 486, 488 (Tex. 1967).  A defendant bringing a plea in abatement should identify
the obstacle to the suit's continuation and an effective cure and ask the trial court to suspend the suit
until the defect is corrected.  Martin, 2 S.W.3d at 354; see American Motorists Ins. Co. v. Fodge,
63 S.W.3d 801, 805 (Tex. 2001).  The trial court should give the plaintiff an opportunity to cure the
defect and not dismiss immediately; if the plaintiff does not correct the defect, the trial court may
dismiss the suit without prejudice.  Martin, 2 S.W.3d at 354; see Garcia-Marroquin v. Nueces
County Bail Bond Bd., 1 S.W.3d 366, 374 (Tex. App.--Corpus Christi 1999, no pet.).
	Limitations is an affirmative defense, and a defendant asserting limitations must
plead, prove, and secure findings on that issue.  Tex. R. Civ. P. 94; Woods v. William M. Mercer,
Inc., 769 S.W.2d 515, 517 (Tex. 1988).  Limitations may be addressed by way of special exceptions (4)
or other preliminary hearing only if it is clear from the face of the plaintiff's pleadings that
limitations have run.  See Armstrong v. Snapp, 186 S.W.2d 380, 383 (Tex. Civ. App.--Fort Worth
1945, no writ); Steele v. Glenn, 57 S.W.2d 908, 913 (Tex. Civ. App.--Eastland 1933, writ dism'd
w.o.j.).  A plea in bar should not be sustained through a preliminary hearing unless (1) the parties
agree to such a procedure, or (2) the plea is brought by way of summary judgment procedures. 
Kelley, 309 S.W.2d at 214; Piper v. Estate of Thompson, 546 S.W.2d 341, 343-44 (Tex. Civ.
App.--Dallas 1976, no writ).  The title of a defendant's plea is not controlling; the trial court should
look to the substance of the plea and treat it accordingly.  Tex. R. Civ. P. 71; see Jarrell, 418 S.W.2d
at 488; Piper, 546 S.W.2d at 344; Armstrong, 186 S.W.2d at 383; see also Kelley, 309 S.W.2d at
214-15 ("The practice of misnaming a plea in bar in order to procure a preliminary trial as if the plea
were one in abatement is confusing and not to be encouraged.").
	We recognize that section 16.064 states that limitations are not tolled "if the adverse
party has shown in abatement that the first filing was made with intentional disregard of proper
jurisdiction.  Tex. Civ. Prac. & Rem. Code Ann. § 16.064(b) (emphasis added).  However,
"abatement," which is formally defined as "[t]he act of eliminating or nullifying," or "[t]he
suspension or defeat of a pending action for a reason unrelated to the merits of the claim," Black's
Law Dictionary 2 (7th ed. 1999), in Texas procedure refers more to the suspension of a defective
cause while some curative action is sought, not the immediate dismissal or defeat of such an action. 
See Tex. R. Civ. P. 150-160 (abatement of suit).  Despite the language of section 16.064 and the title
used by Staudt, his plea was actually one in bar rather than in abatement because it sought to show
that the Gordons could never recover.  See Smith v. City of Dallas, 404 S.W.2d 839, 842 (Tex. Civ.
App.--Dallas 1966, no writ); Pucek v. Koppa, 32 S.W.2d 248, 249 (Tex. Civ. App.--Waco 1930,
no writ); Couger v. Allen, 25 S.W.2d 666, 669 (Tex. Civ. App.--Fort Worth 1930, no writ).
	The Gordons' pleadings do not on their face show that limitations had run, and the
record does not indicate that the parties agreed to try Staudt's defense in a preliminary hearing. (5) 
Such an issue is more appropriately raised by way of a motion for summary judgment or by trial on
the merits.  We therefore examine Staudt's motion to determine whether he established his defense
as a matter of law.  Staudt must have shown that the Gordons filed in the justice court either (1) after
limitations had already run, or (2) in a bad faith attempt to confer improper jurisdiction on the justice
court, knowing that jurisdiction was proper in the county court. 

Did Staudt Prove His Affirmative Defense as a Matter of Law?
	A motion for summary judgment is properly granted only if the movant establishes
that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. 
Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Holmstrom
v. Lee, 26 S.W.3d 526, 530 (Tex. App.--Austin 2000, no pet.).  A defendant seeking summary
judgment based on an affirmative defense must prove each element of the defense as a matter of law,
leaving no issues of material fact.  Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999);
Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex. 1996).  A defendant moving
for judgment on a limitations defense must prove when the cause of action accrued.  See Steel, 997
S.W.2d at 224; Sanchez, 924 S.W.2d at 927-29.  If the plaintiff relies on a tolling statute, the
defendant must also negate the applicability of the statute.  Zale Corp. v. Rosenbaum, 520 S.W.2d
889, 891 (Tex. 1975).  Not until the defendant shows that the plaintiff's cause is barred by
limitations does the burden shift to the plaintiff to establish tolling.  See Wise v. Anderson, 359
S.W.2d 876, 880 (Tex. 1962); Harris v. Columbia Broadcasting Sys., Inc., 405 S.W.2d 613, 617
(Tex. Civ. App.--Austin 1966, writ ref'd n.r.e.).  In reviewing the grant of summary judgment, we
make every reasonable inference, resolve all doubts, and view the evidence in the light most
favorable to the non-movant.  Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995);
Holmstrom, 26 S.W.3d at 530.

Was the Gordons' Justice-Court Suit Filed After Limitations Ran?
	In their second issue, the Gordons argue that the county court erred in finding that
they filed their suit in the justice court after limitations had already run.  On appeal, Staudt contends
that there was evidence that the Gordons' cause of action accrued more than four years before they
filed their suit in justice court on March 6, 2000. (6)  He asserts that the county court "could have found
that the earliest date upon which [Staudt] could have breached his alleged agreement to pay the
Gordons was prior to March 6, 1996," and attacks the Gordons' claim that it was "uncontroverted"
that their cause accrued on or after March 22, 1996.  We agree that the evidence does not establish
as a matter of law that the Gordons' cause accrued on or after March 22, 1996.  However, neither
does the evidence establish as a matter of law that their cause accrued before March 6, 1996.  In
hearing a plea in bar in a summary proceeding, a trial court must make all inferences and interpret
all evidence in favor of the non-moving party, in this case, the Gordons.  It was not for the county
court to hear conflicting evidence and decide which evidence was more persuasive.  Staudt did not
show as a matter of law that the Gordons' cause of action accrued more than four years before they
filed their suit in justice court.  We sustain the Gordons' second issue on appeal.

Did the Gordons File in the Justice Court in Bad Faith?
	In the Gordons' third and fourth issues, they attack the county court's findings that
they did not "prove facts sufficient to bring [their] action under Section 16.064" and that they filed
their suit in justice court in intentional disregard for that court's jurisdiction.  Staudt argues that
sufficient evidence supports the county court's finding that the Gordons acted with such intentional
disregard.  However, this was not a trial on the merits, and the standard under which we will review
the county court's decision is the standard applied in summary judgment proceedings.
	If a plaintiff files suit and is dismissed for lack of jurisdiction, he may then file the
same cause in a different trial court within sixty days, and section 16.064 will toll the running of
limitations for the time between the filing of the two actions.  Tex. Civ. Prac. & Rem. Code Ann.
§ 16.064(a).  However, section 16.064 will not toll limitations if the first suit is filed with intentional
disregard for the first court's jurisdiction.  Id. § 16.064(b).  Although the tolling statute is to be
liberally construed to effectuate "its manifest objective--relief from penalty of limitation bar to one
who has mistakenly brought his action 'in the wrong court,'" its reach is not unbounded.  Clary
Corp. v. Smith, 949 S.W.2d 452, 461 (Tex. App.--Fort Worth 1997, pet. denied) (quoting Burford
v. Sun Oil Co., 186 S.W.2d 306, 310 (Tex. Civ. App.--Austin 1944, writ ref'd w.o.m.)).
	To support his contention that the Gordons filed in justice court in clear disregard for
that court's jurisdiction, Staudt points to letters sent by the Gordons in 1997 demanding $6,000. 
However, the Gordons testified before the county court that they believed $4,800 was a fair estimate
of the amount Staudt owed them, that they filed in the justice court in good faith, and that the $6,000
sought in their demand letters was merely "a good starting point" for negotiations.  Gordon explained
that Staudt owed three $1,200 payments for work from December through March 15, and that he
believed he could only prove at most another $1,200 of expenses, totaling $4,800.  Gordon said he
had kept poor records of the money owed by Staudt, but thought it would not be an issue because
he believed Staudt would keep his word.  After Staudt produced Gordon's handwritten bills in a
hearing before the justice court, the amount in question totaled $7,100, and the justice court
dismissed the case.  The evidence did not establish as a matter of law that section 16.064 did or did
not apply to toll limitations.  There is clearly a fact issue as to whether the Gordons filed their
petition in justice court in bad faith.  The county court erred in finding as a matter of law that the
Gordons filed in justice court with intentional disregard for that court's jurisdiction.
	Further, the county court erred in finding that the Gordons failed to prove that section
16.064 should apply.  It was not the Gordons' burden to prove jurisdiction, but rather Staudt's
burden to prove that limitations had not been tolled and had run on the Gordons' claims. (7) See Steel,
997 S.W.2d at 224; Zale Corp., 520 S.W.2d at 891.  We sustain the Gordons' third and fourth issues.

Conclusion
	We have sustained the Gordons' issues complaining of the county court's granting
of Staudt's plea in abatement and dismissal of their lawsuit. (8)  We hold that the county court
improperly dismissed the Gordons' suit based on Staudt's plea in abatement.  We reverse the order
of dismissal and remand the cause for further proceedings.


					__________________________________________
					Mack Kidd, Justice
Before Justices Kidd, B. A. Smith and Puryear
Reversed and Remanded
Filed:   February 20, 2004
1.   Section 16.064 tolls the running of limitations from the date a plaintiff files an action in
one trial court until the filing of the same action in a different court if (1) the first action is dismissed,
set aside, or annulled for lack of jurisdiction, and (2) the second suit is filed within sixty days of the
dismissal or disposition of the first action.  Tex. Civ. Prac. & Rem. Code Ann. § 16.064(a) (West
1997).  Section 16.064(a) does not apply if the first action was filed with "intentional disregard of
proper jurisdiction."  Id. § 16.064(b).
2.   The county court's order states that Staudt's plea in abatement challenged the sufficiency
of the Gordons' pleadings on the grounds that: (1) there was no contract between the parties and
therefore no breach; (2) if there was a contract, there were conditions precedent; and (3) if a contract
did exist, the statute of limitations had run on any claim the Gordons may have had.  However,
Staudt's plea in abatement argues only that the Gordons' suit should be barred as untimely filed
because they filed their claims in the justice court with intentional disregard for that court's
jurisdictional limits.  Staudt did not make any argument related to the merits of the Gordons' claims
and whether there was a contract between the parties.
3.   Staudt has filed a motion to have the Gordons' brief, or portions thereof, stricken due to
the Gordons' inclusion of and reference to several documents that were not made part of the record
in the county court.  We agree with Staudt that the Gordons may not rely on those documents in this
appeal and we sustain his motion as far as it asks this Court not to refer to the offending documents. 
We will not, however, strike the Gordons' brief.  Instead, we will ignore the documents and any
argument advanced by the Gordons that relies on such documents.
4.   Special exceptions are intended to force clarification of unclear or vague pleadings. 
Villarreal v. Martinez, 834 S.W.2d 450, 451 (Tex. App.--Corpus Christi 1992, no writ).  An
affirmative defense, on the other hand, asserts that the plaintiff should not recover even if the alleged
facts are true.  Id. at 452; Hays Consol. Indep. Sch. Dist. v. Valero Transmission Co., 645 S.W.2d
542, 546 (Tex. App.--Austin 1982, writ ref'd n.r.e.).
5.   In Staudt's original answer, he asserted limitations as an affirmative defense.  About a year
later, Staudt filed his "plea in abatement," but did not at that time set it for hearing.  In response, the
Gordons filed a motion seeking sanctions on the grounds that Staudt's plea in abatement lacked merit
and was untimely filed.  Shortly after Staudt filed his plea, the Gordons also filed traditional and "no-evidence" motions for summary judgment and set their motions for hearing.  See Tex. R. Civ. P.
166a(a), (i).  Staudt then filed an amended plea and set it for hearing at the same time as the
Gordons' motions.  At the hearing, after the Gordons' attorney described their pending motions, the
parties' attorneys launched into argument on the motions and Staudt's plea, largely focusing on the
propriety of the Gordons' justice court filing.  The county court allowed witness testimony related
to Staudt's plea.
6.   We note that Staudt's plea in abatement did not assert that the Gordons' justice court suit
was filed after limitations had run.  In fact, his plea states that the Gordons' cause of action
"occurred, if at all, on or before March 22, 1996."
7.   In their fifth issue, the Gordons contend that the county court erred in finding that their
county court suit was filed when limitations had run.  We agree.  Because there is a fact issue as to
whether the Gordons filed in justice court in good faith, a fact issue remains as to whether limitations
have been tolled since March 6, 2000.
8.   The Gordons also contend that: (1) the county court erred in hearing Staudt's plea because
it was filed more than a year after the Gordons filed their county court suit; and (2) Staudt waived
his argument that the Gordons' justice suit was barred by limitations because he did not raise it
before the justice court.  Due to our holding on the Gordons' other points, we need not address
whether Staudt's plea was untimely filed, and we decline to hold as a matter of law that Staudt
waived his affirmative defense of limitations.  We note that Staudt asserted limitations in his original
answer filed in the county court, albeit with little discussion or detail.  As for the Gordons' assertion
that Staudt did not raise limitations before the justice court, that argument relies on Staudt's justice
court pleadings, and it appears that those documents were not made part of the county court record. 
As observed earlier, the Gordons may not rely on documents outside of the county court's record for
their arguments on appeal.  We further note that the Gordons did not raise this particular waiver
argument before the county court and may not raise it for the first time on appeal.  See Tex. R. App.
P. 33.1(a).  We overrule the Gordons' first issue on appeal.
