Brown v. Prairie View A & M University

• Decision Date: 18 February 1982
• Docket Number: No. A2916,A2916
• Citation: 630 S.W.2d 405
• Parties: 3 Ed. Law Rep. 784 Mrs. Burnett BROWN, Appellant, v. PRAIRIE VIEW A & M UNIVERSITY, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 405

630 S.W.2d 405

3 Ed. Law Rep. 784

Mrs. Burnett BROWN, Appellant, v. PRAIRIE VIEW A & M UNIVERSITY, Appellee.

No. A2916.

Court of Appeals of Texas, Houston (14th Dist.).

Feb. 18, 1982.

Robert Hohenberger, Russell T. Van Keuren, Houston, for appellant.

Mark White, Jack Sparks, Austin, Larkin C. Eakin, Jr., W. H. Betts, Hempstead, for appellee.

Before J. CURTISS BROWN, C. J., and JUNELL and PRICE, JJ.

JUNELL, Justice.

This consolidated appeal arises out of a lawsuit filed by appellant Mrs. Burnett Brown on account of the death of Mrs. Brown's son, Mark Anthony Brown, a student athlete at Prairie View A & M University. Mark Anthony Brown collapsed during football practice on August 19, 1976, and was taken to Waller County Hospital in Hempstead, Texas, where he died the next day of sickle cell crisis.

Mrs. Brown filed suit in Harris County under the Texas Tort Claims Act and for malpractice against the following defendants: (1) Dr. W. J. Parker, a physician who had performed a physical examination of the deceased prior to his entry into Prairie View A & M and who was later dismissed from the lawsuit by agreement; (2) Prairie View A & M University, which was dismissed for want of jurisdiction and granted severance by order signed May 29, 1981, after the case had been transferred to Waller County from Harris County; (3) Dr. E. R. Owens, medical director of Prairie View A & M, who was granted summary judgment and granted severance by order signed July 20, 1981; (4) Waller County and Waller County Hospital which were dismissed for want of jurisdiction and granted severance by order signed August 6, 1981; and (5) Dr. S. C. Walker, deceased, whose representative Gail Marie Walker Baird was dismissed for want of prosecution. No appeal is made as to Dr. Parker; Prairie View A & M, Dr. Owens, Waller County and Waller County Hospital form the basis of one appeal; and the representative of the estate of Dr. Walker forms the basis of a separate appeal. We have consolidated the two appeals for consideration. We dismiss in part and sever and reverse in part.

Prior to submission of this appeal, appellee Prairie View A & M filed Amended Motion to Dismiss, arguing that because the transcript was not timely filed this appeal must be dismissed as to Prairie View A & M. In opposition appellant argues that the trial court's order of dismissal did not become final and appealable as of the date the order of severance was signed.

The trial court entered its order dismissing Prairie View A & M from this lawsuit on April 20, 1979. On May 29, 1981, appellant's cause of action against Prairie View A & M was severed from the other causes of action in the case. Appellant timely filed notice of appeal and appeal bond. The transcript was filed on August 19, 1981, 82 days after the order of severance was signed. Appellant has filed no motion for extension of time for filing the record and has offered no reasonable explanation for her delay.

The date a judgment or order is signed determines the beginning of the periods prescribed for filing the transcript and statements of facts. Tex.R.Civ.P. 306a. The transcript and statement of facts shall be filed within 60 days after the judgment being appealed from is signed. Tex.R.Civ.P. 306a, 386. In order to seek an extension of the time in which to file transcript and statement of facts, an appellant may file a motion reasonably explaining the need for such extension within 15 days after the last date the transcript and statement of facts might be timely filed. Tex.R.Civ.P. 21c, 386. Rule 21c of the Texas Rules of Civil Procedure provides:

An extension of time may be granted for late filing in a court of civil appeals of a transcript, statement of facts, motion for rehearing, or application to the supreme court for writ of error, if a motion reasonably explaining the need therefor is filed within fifteen (15) days of the last date for filing as prescribed by the applicable rule or rules.

Rule 437 provides:

A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities, provided the court may make no enlargement of time prohibited by Rule 5 nor any enlargement of the time for filing transcript and statement of facts except pursuant to Rule 21c.

Rule 386 provides, in pertinent part, as follows:

...Failure to file either the transcript or the statement of facts within such time shall not affect the jurisdiction of the court or its authority to consider material filed late, but shall be ground for dismissing the appeal, affirming the judgment appealed from, disregarding materials filed late,...

While there is presently a conflict in the opinions of the courts of appeals as to the effect of Rules 21c, 386 and 437 when a motion to extend time to file the transcript is filed after the expiration of 15 days after the last date on which the transcript and statement of facts would be timely filed, ¹ we are not confronted with the resolution of that precise question there, for appellant has never offered a reasonable explanation for the late filing and has made no motion to extend time to file the transcript.

In our opinion the effect of the language of Rule 386 quoted above is clear in the present circumstance. We do not dismiss Prairie View A & M University for lack of jurisdiction but dismiss the appeal as to Prairie View A & M University because appellant has filed no motion for extension of time pursuant to Rule 21c and has failed to comply with Rule 386 by filing the transcript within 60 days after the order of severance was signed and the order dismissing Prairie View A & M became appealable. We reach the same result whether the 15-day time limit is discretionary or mandatory.

By his Motion to Affirm filed prior to submission and ordered taken with the case, appellee Dr. Owens urges that the now unappealable order dismissing Prairie View A & M constitutes a final judgment which is a complete bar to Mrs. Brown's claim against Dr. Owens. In support of that position Dr. Owens cites Section 12(a) of the Tort Claims Act, which provides as follows:

The judgment or settlement in an action or claim under this Act shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of a unit of government whose act or omission gave rise to the claim.

Tex.Civ.Stat.Ann. art. 6252-19, § 12(a) (Vernon 1970). In addition, Dr. Owens relies on Steele v. Barbian, 620 S.W.2d 875 (Tex.Civ.App.-Amarillo 1981, no writ). That case holds summary judgment bars subsequent action under the statute and does not, in our opinion, control the question presented here.

In other contexts Texas courts have held that a judgment dismissing a suit for lack of jurisdiction is not res judicata as to the merits and does not bar a plaintiff from bringing an action on the same cause in a court having jurisdiction. New Friendship Baptist Church v. Collins, 453 S.W.2d 529 (Tex.Civ.App.-Houston (14th Dist.) 1970, no writ); Cowgill v. White, 543 S.W.2d 437 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.). For the doctrine of res judicata to bar a subsequent action or suit, there must have been a prior final judgment on the merits by a court of competent jurisdiction. In addition, the parties, or those in privity with them, must be identical in both suits, and the same cause of action must be involved in both suits. Jones v. Texas Tech University, 656 F.2d 1137, 1141 (5th Cir. 1981).

The trial court in the instant case did not address the merits of the case but merely dismissed Prairie View A & M for want of jurisdiction. In our opinion the judgment dismissing Prairie View A & M for want of jurisdiction is not a judgment which would bar action on the claim within the meaning of section 12(a) of the Texas Torts Claims Act. We therefore deny the motion of Dr. E. R. Owens to affirm.

Appellant brings forward four points of error, in the first two of which she argues that the trial court erred in granting motions to dismiss Prairie View A & M and Waller County Hospital. ² In light of our decision, discussed above, to dismiss this appeal as to Prairie View A & M, we will limit our discussion of these points of error to the dismissal of Hospital.

The Waller County District Court granted appellee Hospital's plea in abatement and motion to dismiss which was based on the contention that the Harris County District Court had no jurisdiction of the suit filed under the provisions of the Texas Tort Claims Act and had no authority to transfer the case to Waller County and, consequently, that the Waller County District Court must dismiss the cause of action against Hospital.

Appellant Mrs. Brown brought suit under the Texas Tort Claims Act which provides in pertinent part, as follows:

Sec. 3. Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office ... or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state.

Sec. 5. All cases arising under the provisions of this Act shall be instituted in the county in which the cause of action or a part thereof arises.

Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3 (Vernon Supp. 1980-81) & § 5 (Vernon 1970).

The State of Texas has governmental immunity except as waived under the Texas Tort Claims Act; since a state may withhold its consent to be sued, when it waives liability it can impose conditions that it can be sued only in certain courts and places. State v. Isbell...