Brazos Elec. Power Co-op, Inc. v. Callejo

• Court: Texas Court of Appeals
• Writing for the Court: Before ENOCH; ENOCH
• Citation: Brazos Elec. Power Co-op, Inc. v. Callejo, 734 S.W.2d 126 (Tex. App. 1987)
• Decision Date: 29 June 1987
• Docket Number: No. 05-87-00267,05-87-00267
• Parties: BRAZOS ELECTRIC POWER COOPERATIVE, INC., Appellant, v. William CALLEJO, et al., Appellees. CV.

Page 126

734 S.W.2d 126

BRAZOS ELECTRIC POWER COOPERATIVE, INC., Appellant, v. William CALLEJO, et al., Appellees.

No. 05-87-00267 CV.

Court of Appeals of Texas Dallas.

June 29, 1987.

Patrick D. Millar, Waco, for appellant.

Mike McKool, Dallas, for appellees.

Before ENOCH, C.J., and LAGARDE and THOMAS, JJ.

ENOCH, Chief Justice.

Appellees, William Callejo and others (collectively, "Callejo"), have filed a motion with this Court to dismiss this appeal for want of jurisdiction. For the reasons given below, we conclude that we have jurisdiction over this appeal, and, accordingly, deny Callejo's motion.

Appellant Brazos Electric Power Cooperative, Inc. ("Brazos"), sued Callejo in a condemnation proceeding. The trial court rendered a judgment non obstante veredicto in favor of Callejo on November 26, 1986. Brazos seeks to appeal that judgment.

On December 10, 1986, within 30 days of the judgment, Brazos filed a pleading in the trial court captioned "Motion to Modify Judgment Non Obstante Veredicto Pursuant to Rule 329b." On January 9, 1987, more than 30 days, but less than 90 days, after the judgment, Brazos filed its cost bond for this appeal.

Callejo argues that, although titled "Motion to Modify ...," substantively, the pleading is no more than a motion for a judgment on the verdict. Consequently, Callejo analogizes the motion to modify to a motion for judgment non obstante veredicto, and, therefore, it did not extend the time for filing a cost bond on appeal. Accordingly, Callejo concludes that Brazos filed its cost bond impermissibly late and, thus, urges that this Court lacks jurisdiction of this appeal.

Rule 329b(g) of the Texas Rules of Civil Procedure provides that "[a] motion to modify, correct, or reform a judgment ... shall extend the trial court's plenary power and the time for perfecting an appeal in the same manner as a motion for new trial." TEX.R.CIV.P. 329b(g).

In arguing that a motion for judgment on the verdict is not one of the motions within the purview of rule 329b, Callejo relies on First Freeport National Bank v. Brazoswood National Bank, 712 S.W.2d 168 (Tex.App.--Houston [14th Dist.] 1986, no writ). In First Freeport, the appellant had filed a motion for a modified judgment after the trial court's judgment. The Fourteenth District Court of Appeals determined that the appellant's motion was actually a motion for a judgment non obstante veredicto, and that such a motion is not one of those motions enumerated by Rule 329b to extend the appellate timetable. Accordingly, that court dismissed the appeal for want of jurisdiction. 712 S.W.2d at 170.

Recognizing that the motion filed in the trial court, in substance, was a motion for judgment on the verdict rather than a motion for judgment non obstante veredicto, we consider the difference to be without distinction. Consequently, First Freeport appears to be on point. Because we see no significant way to distinguish First Freeport, we must decide whether to adopt its reasoning. We are not persuaded by that reasoning and, thus, we expressly decline to follow the reasoning adopted by the Fourteenth District Court of Appeals.

Both Callejo and First Freeport start with the principle that the character of a motion is to be determined from its substance, not from its caption. 712 S.W.2d at 170. We do not dispute that principle, and assume, without deciding, that the character of Brazos' motion in the instant case was a motion for judgment on the verdict. However, in determining that a motion for judgment non obstante veredicto filed after judgment is entered does not fit the parameters of Rule 329b the Houston court returns to the "form over substance" trap. That court recognized this problem: "Arguably, the difference between a motion to modify and a motion for judgment notwithstanding the verdict is one of degree." First Freeport, 712 S.W.2d at 170.

The approach taken by the Fourteenth Court is fraught with difficulty. Under its opinion, whenever an appellant files a motion after a judgment in accordance with rule 329b(g), and thereafter files his cost bond more than 30 days after judgment, the appellee could argue that the appellate court lacked jurisdiction because of a technical deficiency (i.e., "degree" of difference) in the appellant's motion. The appellate court's jurisdiction would then have to be determined case by case, and litigants would have no assurance of the court's jurisdiction until such a determination was made. To make jurisdiction depend on such a "degree" of difference is to thwart the purpose behind the rules of appellate procedure.

An additional problem with the Houston Court's ruling is that it virtually creates a class of post-judgment motions not covered by any rule of civil procedure. See TEX.R.CIV.P. 316, 317 ("corrections" and "misrecitals" motions which do not extend appellate time tables) and 329b ("modified," "corrected," "reformed," and "new trial" motions which do extend appellate time tables). There is no question that a motion for a judgment nunc pro tunc, as contemplated by rules 316 and 317, does not extend the appellate timetable for any complaint that could have been made about the original judgment. TEX.R.CIV.P. 306a(6). The question is simply whether there are two categories of motions seeking substantive changes in a judgment, those that extend the appellate timetable and those that do not.

The issue addressed in Rule 329b is not whether the pleading specifically requests a "modification" or "correction" or "reformation" of the judgment, as opposed to a pleading that does not make such a specific request; the issue is whether the motion requests a substantive change in the judgment as entered. We conclude that any post-judgment motion that, if granted, would result in a substantive change in the judgment as entered is a motion within the contemplation of rule 329b(g), and is, therefore, effective in extending the time to perfect the appeal.

We have held that the "manifest purpose" of the rules is "to eliminate jurisdictional pitfalls that result in dismissals on technical grounds." Miller v. Hernandez, 708 S.W.2d 25, 27 (Tex.App.--Dallas 1986, no writ). Certainly,...