Gannon also seeks to hold Baker liable for acts not connected with the sale of substantially all the assets that affected the value of the corporate stock. Gannon relies on dicta in Farnsworth v. Massey, 365 S.W.2d 1 (Tex. 1963), which states that there may be situations where the appraisal remedy may not fully compensate the dissenting shareholder: One may easily conceive of a factual situation wherein a recovery of an amount equal to the "fair value" of a dissenting shareholder's interest as of a certain date would not fully compensate him for the actual loss which he had sustained.

One can enjoin a merger for any of several reasons: fraud, illegality, ultra vires act, or unfairness. See generally W. Cary, Cases and Materials on Corporations 1707-12 (4th ed. 1969). It is unclear which, if any, of these doctrines would apply under Texas law. See, e. g., Texas Bus.Corp.Act Ann. art. 5.16.E(5) (Vernon Cum. Supp. 1978-1979); Governing Board v. Pannill, 561 S.W.2d 517 (Tex.Civ.App. 1977); Inter-Continental Corp. v. Moody, 411 S.W.2d 578 (Tex.Civ.App. 1966); Farnsworth v. Massey, 365 S.W.2d 1 (Tex. 1963). In any event, we cannot decide the question here because the district court did not address this issue and it has not been fully briefed in this court.

Both parties reference a 1963 supreme court case affirming a jury trial involving appraisal of a dissenting shareholder's interest in the corporation. SeeFarnsworth v. Massey , 365 S.W.2d 1 (Tex. 1963). In that case, the plaintiff asserted a cause of action for conversion and, in the alternative, asked for recovery of the fair value of his stock.

Citing Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 723 (Tex. 1990) and Massey v. Armco Steel Co., 652 S.W.2d 932 (Tex. 1983), the attorneys correctly set out the elements of civil conspiracy and fraud. However, (i) because acts which are expressly or impliedly authorized by law cannot be made the basis of a claim for damages, ( i.e., no duty), Farnsworth v. Massey, 365 S.W.2d 1, 5 (Tex. 1963), (ii) the proper exercise of a legal right cannot constitute a legal wrong for which a cause of action will lie, Tennessee Gas Pipeline v. Lenape Res., 870 S.W.2d 286, 304 (Tex.App. — San Antonio 1993), modified, 925 S.W.2d 565 (Tex. 1996), ( i.e., malpractice suit not wrongful), and (iii) because the clients' alleged actions were impliedly if not expressly authorized by law and were not prohibited by the contracts between them and the attorneys, the trial court did not err in granting the clients' motion for summary judgment. The attorneys' sole issue is overruled.

According to long-standing precedent, the proper remedy for failure to satisfy an insurance policy's conditions precedent is abatement of the lawsuit. See Farnsworth v. Massey, 365 S.W.2d 1, 4 (Tex. 1963); Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 735 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Pennsylvania Fire Ins. Co. v. Faires, 35 S.W. 55, 55 (Tex.Civ.App.-San Antonio 1896, no writ). Therefore, Defendant's Motion to Abate is GRANTED.

[Maryland's] statutory provisions [for appraisal proceedings] suggest that, in the usual case, resort by a dissenting shareholder to the appraisal remedy constitutes a statutory election of remedies and bars resort to remedies otherwise available under common law. Well reasoned opinions from other jurisdictions with fairly similar appraisal statutes have so held. See, e.g., Dofflemyer v. W.F. Hall Printing Co., 432 A.2d 1198, 1200-02 (Del. 1981); Johnson v. Baldwin, 221 S.C. 141, 69 S.E.2d 585, 591-92 (S.C. 1952). Compare Farnsworth v. Massey, 365 S.W.2d 1, 5-6 (Tex. 1963) (noting but not deciding the question.) See also Breed v. Barton, 54 N.Y.2d 82, [ 444 N.Y.S.2d 609) 429 N.E.2d 128, 129-31 (1981).

These statutory provisions suggest that, in the usual case, resort by a dissenting shareholder to the appraisal remedy constitutes a statutory election of remedies and bars resort to remedies otherwise available under common law. Well reasoned opinions from other jurisdictions with fairly similar appraisal statutes have so held. See, e.g., Dofflemyer v. W.F. Hall Printing Co., 432 A.2d 1198, 1200-02 (Del. 1981); Johnson v. Baldwin, 221 S.C. 141, 69 S.E.2d 585, 591-92 (S.C. 1952). Compare Farnsworth v. Massey, 365 S.W.2d 1, 5-6 (Tex. 1963) (noting but not deciding the question). See also Breed v. Barton, 54 N.Y.2d 82, 429 N.E.2d 128, 129-31 (1981).

A party waives its right to seek abatement by failing to assert it "until after the hearing on the merits of the case." Shiffers v. Estate of Ward , 762 S.W.2d 753, 755 (Tex. App.—Fort Worth 1988, writ denied) ; accordSchlein v. Griffin , No. 01-14-00799-CV, 2016 WL 1456193, at *6, 2016 Tex. App. LEXIS 3715, at *18 (Tex. App.—Houston [1st Dist.] Apr. 12, 2016, pet. denied) (mem. op.) (holding that nonjurisdictional plea in abatement is waived if not urged before trial on merits); Tex-On Motor Ctr. v. TranSouth Fin. Corp. , No. 14-04-00366-CV, 2006 WL 664161, at *1, 2006 Tex. App. LEXIS 2035, at *3 (Tex. App.—Houston [14th Dist.] Mar. 16, 2006, no pet.) (mem. op.) (same); see alsoFarnsworth v. Massey , 365 S.W.2d 1, 4 (Tex. 1963) (holding that failure to file plea in abatement before trial constituted waiver of plea). Twin Creeks responds that at the time of the hearing on Sunset Ridge's motion for partial summary judgment, Sunset Ridge still maintained its cause of action for monopoly against Twin Creeks and that after the hearing, Sunset Ridge amended its petition renaming the other two Twin Creek entities as defendants.

The failure to file a plea in abatement before proceeding to trial constitutes a waiver thereof. See Farnsworth v. Massey, 365 S.W.2d 1, 4 (Tex.1963) (no plea in abatement filed and parties proceeded to trial on merits). The record shows that Hamon's initial plea in abatement and motions for summary judgment were filed contemporaneously. They do not state they were filed in the alternative.

Willis, 760 S.W.2d at 647. In order for a cause of action to exist, there must have been a legal wrong, seeFarnsworth v. Massey, 365 S.W.2d 1, 5 (Tex. 1963), resulting in injury. SeeHernandez v. Great American Insurance Company of New York, 456 S.W.2d 729, 733 (Tex.Civ.App.-Corpus Christi 1970, writ granted), rev'd on other grounds, 464 S.W.2d 91 (Tex. 1971); see alsoKPMG PeatMarwick, 988 S.W.2d at 749 (cause of action accrues when the plaintiff knew or should have known of the wrongfully caused injury).