Lemuel O. Herring v. Michael Welborn, Donald Kubicek, Richard Corrigan, Robert Joseph, Murray Guaranty Title Company, Robert Hyatt and Cynthia Hyatt--Appeal from 81st Judicial District Court of Wilson County

99-00473 Herring v Welborn concurring and dissenting opinion.wpd CONCURRING AND DISSENTING OPINION
No. 04-99-00473-CV
Lemuel O. HERRING,
Appellant
v.
Michael WELBORN, Donald Kubicek, Richard Corrigan, Robert Joseph,
Murray Guaranty Title Co., Robert Hyatt, and Cynthia Hyatt,
Appellees
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 99-04-0159-CVW
Honorable Olin B. Strauss, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Concurring and dissenting opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: July 12, 2000

I concur in part and dissent in part. I would affirm the trial court's order in its entirety, and I would add appellate sanctions against Herring.

I concur with the majority's decision affirming the trial court's order dismissing Herring's lawsuit, but I dissent to the majority's decision to reform the order into a dismissal without prejudice and deny the Welborn defendants the monetary sanctions they were awarded below.

The majority says Herring's attempt to litigate the land title issues in Wilson County had some arguable legal basis. I disagree. Although the land was located in Wilson County, once the property came under the jurisdiction of the San Patricio County probate court, any title issue involving the property was properly raised there. It cannot be reasonably argued, however creatively, that title issues foreclosed by a final judgment in one court of competent jurisdiction can be relitigated in another court of equal jurisdiction.

Moreover, the frivolous and harassing character of Herring's actions are clearly revealed by the fact that he sued the San Patricio County trial judge whose ruling he did not like, and even now appeals the dismissal of his claim against that judge. I believe the record amply supports the trial court's conclusion that Herring brought this groundless lawsuit for improper purposes.

The plaintiff and his attorney evidently thought they might find a friendlier forum in Wilson County. They did not. The trial court made an assessment of the situation and sanctioned them both. I see no abuse of discretion. I would affirm the trial court sanctions, and would add appellate sanctions against Herring for frivolously appealing the dismissal of Judge Welborn despite his clear judicial immunity.

PAUL W. GREEN

Justice

PUBLISH