Lisa Martinez Paul and Steven Edward Martinez v. Merrill Lynch Trust Company of Texas, Acting in the Capacity of Independent of the Estate of Jose Eduardo Martinez, and Toni Wasson Salvaggio Martinez

 

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00185-CV

 

Lisa Martinez Paul

and Stephen Edward Martinez,

                                                                      Appellants

 v.

 

Merrill Lynch Trust Company of

Texas, Acting in the Capacity of

Independent Executor of the

Estate of Jose Eduardo Martinez,

Deceased and Toni Wasson

Salvaggio Martinez,

                                                                      Appellees

 

 

 


From the County Court at Law No. 1

Brazos County, Texas

Trial Court No. 11,414-PC

 

DISSENTING Opinion


 

          The issue decided by the majority that overshadows its other conclusions is determining that the party responding to a declaratory judgment ruling cannot appeal an adverse ruling if they, too, did not file a pleading also seeking a declaratory judgment.

          Appellants were responding to a suit for declaratory judgment.  Their view of the facts and the law was rejected by the trial court and a contrary position declared.  The majority holds they cannot complain on appeal about the trial court’s ruling.  What a neat position to be in if you are the plaintiff in a declaratory judgment and win – nobody else can complain because they did not plead a cause of action.  So it truly is a case of heads I win, tails you lose, on the appeal.  I won below on my declaratory judgment action and tails you lose because you lost on the declaratory judgment action and cannot complain on appeal.  This cannot be the law.  As the defendant in a suit for declaratory judgment, the Appellants have a right to complain about the declaration of rights under the trial court’s declaratory judgment.  On the record before us, at a minimum the issue was joined and tried by consent.

          Because the holding on this issue may impact the analysis on whether the trial court abused its discretion on the other issues, I will withhold a full analysis of them.  See In the Interest of S.A.P., 135 S.W.3d 165, 178 (Tex. App.—Waco 2004) (Gray, C.J., dissenting), rev’d, 156 S.W.3d 574 (Tex. 2005) (Chief Justice Gray yields to the pressure of a more timely response, as opposed to conducting a “separate, but futile, analysis.”)

 

                                                          TOM GRAY

                                                          Chief Justice

 

Dissenting opinion delivered and filed August 31, 2005