Bee Jay Corp. v. Fort Worth Neuropsychiatric Hospital, Inc., 17862

• Decision Date: 13 October 1977
• Docket Number: No. 17862,17862
• Citation: Bee Jay Corp. v. Fort Worth Neuropsychiatric Hospital, Inc., 557 S.W.2d 161 (Tex. Ct. App. 1977)
• Parties: BEE JAY CORPORATION, Appellant, v. FORT WORTH NEUROPSYCHIATRIC HOSPITAL, INC., Appellee.
• Court: Texas Civil Court of Appeals

Page 161

557 S.W.2d 161

BEE JAY CORPORATION, Appellant, v. FORT WORTH NEUROPSYCHIATRIC HOSPITAL, INC., Appellee.

No. 17862.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 13, 1977.

Staples & Foster and Ross T. Foster, Hurst, for appellant.

Garrett & Burkett and Michael R. Burkett, Fort Worth, for appellee.

OPINION

HUGHES, Justice.

Breach of contract suit in which Bee Jay Corporation sued Fort Worth Neuropsychiatric Hospital, Inc. Bee Jay claimed Hospital had violated a sales contract, for which Bee Jay demanded damages.

After hearing Hospital's motion for summary judgment, the trial court dismissed the cause without prejudice to Bee Jay's right to refile.

We reverse and remand.

Bee Jay sold to Hospital real estate and alleged that as a part of the sales contract it was to have the monthly rent of a lease contract with Bernard Dolenz on a part of such realty for the balance of its five-year term. Bee Jay complains that Hospital ejected Dolenz to its damage in the loss of the lease money.

We do not have a statement of facts submitted in this matter. We do have a "Stipulation of Facts" filed which stipulates that:

1. That the only written lease agreement existing between Plaintiff, BEE JAY CORPORATION, and Bernard J. Dolenz is that agreement attached as Exhibit "B" to the Plaintiff's Original Petition on file herein.

2. That the removal of Bernard J. Dolenz as complained of in this cause of action occurred through and as the result of that forcible entry and detainer action entitled Fort Worth Neuropsychiatric Hospital, Inc. v. Bernard J. Dolenz, being Cause No. 73-72461, in the County Court at Law of Tarrant County, Texas.

3. That judgment was rendered in the said Cause No. 73-72461, and that such judgment was not appealed and was final prior to the institution of this cause of action.

Bee Jay asserts that the trial court entered the judgment appealed here on its own motion and thereby erred. Bee Jay states that the only motion before the trial court was Hospital's motion for summary judgment which could not have been rendered as a dismissal without prejudice of Bee Jay to refile. Therefore, Bee Jay claims the court rendered the judgment on its own motion, without any legal basis to do so. Bee Jay reasons that a court may dismiss a cause on its own motion only where:

(1) There is lack of jurisdiction either of subject matter or parties;

(2) Lack of prosecution;

(3) Failure to comply with a rule for cost; or

(4) Some other specific statutory authority.

Citing Sullivan v. Andrews Independent School District, 471 S.W.2d 664 (Tex.Civ.App. El Paso 1971, writ ref'd n. r. e.).

Hospital in its brief adds:

(5) Lack of jurisdiction amount;

(6) Case calls for an advisory opinion only; and

(7) Prior suit pending.

Since the judgment recites that trial court heard "the Motion for...