Bryan v. General Elec. Credit Corp.

• Decision Date: 16 June 1977
• Docket Number: No. 16890,16890
• Citation: 553 S.W.2d 415
• Parties: Bill BRYAN d/b/a Mustang Trailer Sales, Appellant, v. GENERAL ELECTRIC CREDIT CORPORATION, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 415

553 S.W.2d 415

Bill BRYAN d/b/a Mustang Trailer Sales, Appellant, v. GENERAL ELECTRIC CREDIT CORPORATION, Appellee.

No. 16890.

Court of Civil Appeals of Texas, Houston (1st Dist.).

June 16, 1977.

John S. Brukner, Houston, for appellant.

Henry H. McCreight, Jr., Houston, for appellee.

COLEMAN, Chief Justice.

This is an appeal from a default judgment rendered under the authority of Rule 170, T.R.C.P, when the defendant, Bill Bryan, failed to comply with an order entered in response to the "Motion to Produce Documents and Other Items for Inspection and Copying". The appellant's principal contention is that the trial court erred and abused its discretion in ordering the production of documents under Rule 167, T.R.C.P., because the appellee's motion failed to plead good cause as required by said rule.

Bryan is in the business of selling mobile homes to the public. In 1971 he entered into a contractual relationship with General Electric Credit Corporation relating to retail sales and inventory financing. In 1975 plaintiff filed this suit alleging various breaches of the contractual relationship; seeking damages and a declaratory judgment. A timely answer was filed on behalf of the defendant.

General Electric Credit Corporation filed a Motion to Produce Documents and Other Items for Inspection and Copying. After a hearing at which Bryan appeared by attorney, the trial court entered an order requiring the production of certain documents and other items for inspection and copying. Bryan failed to comply with the order or offer any reason for his noncompliance. General Electric Credit Corporation then filed a motion to compel production of the documents and other items. The hearing was set for July 13, 1976 and notice of the motion and hearing was served upon Bryan. Bryan failed to appear at the hearing. The trial judge sustained the motion and entered a notation on his docket sheet that "Pleadings of Def. struck & other relief."

After the trial judge returned from his vacation he entered an order on August 31, 1976 striking the defendant's answer and granting a default judgment in favor of the plaintiff. On the same day the default judgment was signed and entered. These were separate instruments. On August 9, 1976 twenty-seven days after the hearing on the motion to compel and twenty-two days before the judgment was signed, Bryan filed an instrument entitled "Motion for Rehearing or in the Alternative to Set Aside Order." At that time he was not represented by counsel and he prepared the motion personally. This motion was heard by the court on September 2, 1976 and the court announced its decision overruling the motion on the same date. An order to that effect was signed and entered on September 13, 1976. Prior to the entry of this order Bryan filed a Motion for New Trial on September 9, 1976 and, thereafter, filed a First Amended Motion for New Trial on September 22, 1976. At the September 2 hearing the trial court announced to the parties that he considered the "Motion for Rehearing or in the Alternative to Set Aside Order" as being a motion in the nature of a motion for a new trial. No action was taken on the motion subsequently filed by Bryan.

General Electric Credit Corporation has filed a motion with this court seeking the dismissal of the action by reason of a claimed lack of jurisdiction. The point presented by this motion rests on the appellee's contention that the motion for rehearing which was overruled after the September 2, 1976 hearing was in fact a prematurely filed motion for new trial which was overruled by an order signed and entered on September 13, 1976. The appellee then asserts that the "Defendant's First Amended Motion for New Trial" filed on September 22, 1976 was in fact a second amended motion which cannot be considered by reason of Rule 329b(2), T.R.C.P., which provides no more than one amended motion for new trial may be filed. Appellee contends that the Motion For New Trial filed September 9, 1976 was the First Amended Motion For New Trial and was overruled by operation of law on October 25, 1976. Appellee points out that the appellant filed his cost bond with the court precisely 30 days from the date that the September 9th amended motion was overruled by operation of law and admitted that this cost bond was timely filed. Appellee points out, however, that appellant failed to timely make a request for, and timely file, a transcript of the proceedings within sixty days from the date that the amended motion was overruled by operation of law in violation of jurisdictional mandates of Rule 386, T.R.C.P. Appellee then asserts that since the appellant did not file a motion to extend time for filing the transcript under Rule 21c, T.R.C.P., the jurisdiction of this court has not been invoked since appellant did not timely perfect his appeal.

When appellant filed his Motion for Rehearing on August 9, 1976 no order or judgment had been signed and entered by the trial court. The only record of the action taken by the court after the hearing held on July 13, was the docket entry "Pleading of Def. struck & other relief." In his Motion for Rehearing appellant alleged that he did not attend the hearing because plaintiff's representative had assured him the case was settled and that he would not have to worry about the hearing. He requested that the court set the motion for a hearing and that a "new hearing be ordered and/or, if an order has already been entered, that this order be set aside and a new hearing be ordered."

The order signed and entered on the 31st day of August, 1976 by the trial court recited that on the 13th day of July, 1976 the cause came on to be heard on the plaintiff's motion for order striking out defendant's answer and entering judgment by default in favor of plaintiff for the relief demanded in plaintiff's original petition by reason of defendant's failure and refusal to comply with the order of the court of May 17, 1976 requiring the production of certain documents. The order recited that the court heard argument and was "fully advised that defendant had totally failed and refused to comply with the order of the court of May 17, 1976." The order then states that:

". . . it is ORDERED that the answer of the Defendant be and the same is hereby struck and that Judgment as by default be rendered in Plaintiff's favor against the Defendant for the relief demanded in Plaintiff's Original Petition."

The order further adjudged that all costs of court and other reasonable expenses, including a reasonable attorney's fee of $250.00 incurred as a result of the filing of the motion be assessed against the defendant.

On the same day an instrument entitled "Judgment" was signed and entered by the trial court. This instrument recites that on August 31, 1976,

"among other relief granted, this Court struck Defendant's pleadings from the Docket of the cause and granted Plaintiff a Judgment against the Defendant as requested in Plaintiff's Motion."

The judgment then recites:

"After presentation and consideration of the pleadings, the evidence and argument of counsel, the Court finds that all lawful offsets and credits have been allowed the Defendant, and is of the opinion that the law and the facts are with the Plaintiff and against the Defendant."

The court's judgment was then rendered against the defendant and for the plaintiff in the amount of $22,479.81 with interest, attorney's fees, and also granted certain declaratory relief.

The provisions of the judgment rendered by the court were not known to the appellant at the time he filed his Motion for Rehearing. The appellant did not know the exact provisions of the order entered on the same date, which reflected the relief granted by the trial court after the July hearing. The nature of the relief granted after that hearing was reflected by the court's docket entry which was known to appellant. It might be reasonably concluded, therefore, that the Motion for Rehearing was directed to the action taken by the trial court after the July hearing as reflected in the "Order", rather than the Judgment, subsequently signed and entered.

Rule 306c, T.R.C.P., provides that no motion for new trial shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the rendition of "the judgment the motion assails". In Home Fund, Inc. v. Denton Federal Savings & Loan Ass'n, 485 S.W.2d 845 (Tex.Civ.App. Fort Worth 1972, no writ history), the court refused to apply the provisions of Rule 306c, supra, where the motion for new trial and amended motion for new trial attacked a judgment which was subsequently superseded by a judgment nunc pro tunc. The court reasoned that the motions attacked the judgment which was superseded rather than the superseding judgment. A similar holding is found in Dubert v. Adkins, 475 S.W.2d 383 (Tex.Civ.App. Corpus Christi 1971, no writ history). There the court held that an amended motion for a new trial filed on November 30, which complained of the judgment rendered on November 2 rather than a corrected and amended judgment rendered on December 4 could not be considered under Rule 306c, supra, a prematurely filed motion for new trial in an appeal from the December 4th judgment.

In Mercer v. Band, 454 S.W.2d 833 (Tex.Civ.App. Houston (14th) 1970, no writ history), the court held that an instrument entitled "Amended Motion For New Trial" was in fact a motion to vacate a prior judgment for the plaintiffs and to enter a judgment for the defendant and had no efficacy as a motion for new trial. The court stated that in order to determine the effect of the instrument it was necessary to determine its nature by looking to its substance rather than its form. It stated that a motion's substance is not to be determined by its caption or by its introduction but is to be gleaned from the body of the instrument and its prayer for relief. The...