John T. Bollinger, Jr. v. Telecom Construction Services, L.P.; Larry William Johnson; Octavio and Beatriz Longoria--Appeal from County Court at Law of Kendall County

MEMORANDUM OPINION

No. 04-03-00873-CV

John T. BOLLINGER, Jr.,

Appellant

v.

TELECOM CONSTRUCTION SERVICES, L.P.,

Larry William Johnson, and Octavio and Beatriz Longoria,

Appellees

From the County Court at Law, Kendall County, Texas

Trial Court No. 02-277CCL

Honorable Bill Palmer, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 30, 2004

AFFIRMED

This is an appeal of a judgment declaring that a marriage did not exist. The suit was brought by an acknowledged tortfeasor to determine whether it was liable to a person claiming to be the spouse of someone killed in an automobile accident. The question is whether a trial court has subject matter jurisdiction to determine potential tort liability in a declaratory judgment action. Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.4.Factual and Procedural Background

Beatriz G. Longoria was killed in an automobile accident in Kendall County. Her parents, Octavio and Beatriz Longoria, filed a wrongful death action in Bexar County against Larry William Johnson, the driver of the other vehicle involved in the accident, and his employer, Telecom Construction Services, L.P. (hereinafter jointly referred to as "Telecom"), for damages resulting from their daughter's death. John T. Bollinger, Jr. intervened in the Bexar County lawsuit, claiming to be Beatriz's surviving common-law husband, seeking his own wrongful death and bystander damages.

As the claims between the parents and Telecom were being settled in the Bexar County lawsuit, Telecom filed this declaratory judgment action in Kendall County against Bollinger and Beatriz's parents for the purpose of determining whether Bollinger was indeed Beatriz's common-law husband. Telecom says it has "standing" to sue because "it is not in a position to properly evaluate" Bollinger's "claims and potential claims" "given the uncertainty of [the marriage] relationship" and because it is "a party affected by the true nature" of the relationship.

Bollinger counterclaimed in the Kendall County lawsuit for his wrongful death and bystander damages and moved to dismiss Telecom's suit claiming the declaratory judgment statute does not confer subject matter jurisdiction to decide potential tort liability. The motion to dismiss was denied. Bollinger's counterclaim was then severed out and abated, and the question of whether Bollinger was married to Beatriz at the time of her death was submitted to a jury, which found that no marriage existed.

Discussion

To support his contention that the trial court lacked subject matter jurisdiction to determine potential tort liability in a declaratory judgment action, Bollinger relies on the supreme court's decision in Abor v. Black, 695 S.W.2d 564 (Tex. 1985). But Abor supports the opposite conclusion. In that case, the court held that the declaratory judgment statute "appears to give the courts jurisdiction over declarations of non-liability of a potential defendant in a tort action." Abor, 695 S.W.2d at 566. However, the court went on to say the trial court in that case "should have declined to exercise such jurisdiction because it deprived the real plaintiff of the traditional right to choose the time and place of suit." Id.

If it was error for the trial court to exercise its jurisdiction in this case, the error was waived, or at least rendered harmless, when Bollinger filed his counterclaim. The trial court then had before it Bollinger's wrongful death and bystander claims as well as Telecom's defense-that it was not liable to Bollinger if he was not Beatriz's spouse at the time of her

death. The bifurcated trial procedure used by the trial court in resolving the defensive issue first is not complained about in this appeal and we do not express any opinion about it.

Conclusion

On the sole issue presented, that the trial court lacked subject matter jurisdiction to render the judgment in this case, the issue is overruled. The trial court's judgment is therefore affirmed.

Justice Paul W. Green