Carroll v. Petro-Chemical Transport, Inc.

• Decision Date: 29 November 1973
• Docket Number: PETRO-CHEMICAL,No. 7500,7500
• Citation: 502 S.W.2d 871
• Parties: Lance CARROLL, Appellant-Appellee, v.TRANSPORT, INC., Appellee-Appellant.
• Court: Texas Court of Appeals

Page 871

502 S.W.2d 871

Lance CARROLL, Appellant-Appellee, v. PETRO-CHEMICAL TRANSPORT, INC., Appellee-Appellant.

No. 7500.

Court of Civil Appeals of Texas Beaumont.

Nov. 29, 1973.

Ernest L. Sample, Beaumont, for appellant .

Fly, Moeller & Stevenson, Victoria, Larry Germer, Orgain, Bell & Tucker, Beaumont, for appellee.

KEITH, Justice.

Both parties appeal from a judgment entered in a bill of review proceeding and we will designate the parties as they appeared in the original litigation, not in the posture in which they appeared in the court below in the bill of review proceeding. We review a most confusing record consisting of four transcripts, two statements of fact, and six briefs, with each party being an appellant and an appellee. Additionally, we have many motions challenging the procedural matters leading up to the invocation of the jurisdiction of this court. Our summary will, of necessity, be somewhat lengthy.

1. The Original Suit

Plaintiff sought a monetary judgment against defendant and another corporation, ¹ and the cause went to trial on November 16, 1971, in the 172nd District Court of Jefferson County, Texas, before Judge Thomas A. Thomas. The jury verdict was returned on November 22, 1971. Both parties filed motions for judgment, plaintiff on the verdict and defendant for judgment non obstante veredicto.

Judge Thomas heard oral arguments upon the opposing motions for judgment on March 27, 1972; and, on May 4, 1972, notified counsel by letter:

'Plaintiff's Motion for Judgment in the above named and numbered cause is granted, and Defendant's Motion for Judgment is denied.'

On May 5, 1972, plaintiff's counsel wrote to Judge Thomas enclosing a 'form of judgment' for entry and a copy of his letter along with the enclosure went to opposing counsel. On May 9, 1972, Judge Thomas signed the 'form of judgment' sent by plaintiff's counsel, duly noting the date on entry thereon. Rules of Civil Procedure, rule 306a.

On May 12, defendant's counsel addressed a letter to Judge Thomas, sending copies thereof to opposing counsel, objecting to some of the provisions of the 'proposed judgment.'

Judge Thomas testified that a series of lengthy trials had delayed his decision but, when he made up his mind he wrote the letter of May 4. He recalled having received the May 12 letter from defendant's counsel but said he had no recollection that the judgment had actually been signed before its receipt. He made no reply to the letter.

About May 26, defendant's counsel, Mr. Fly, talked with Judge Thomas by telephone, inquiring if he had received the May 12 letter and was advised that the letter had been received. The conversation was during the recess of another trial, and Judge Thomas's recollection thereof was hazy, as shown by this excerpt:

'I advised him that I had (received the letter) and it (the remaining conversation) was something to the extent that I would let him have an opportunity to propound his position to me whenever the judgment was presented to me, or what was I going to do about it, and all this sort of thing; and I said when I had time to do something about it I'd let him know and kind of left it up in the air.'

Had he realized the judgment had already been signed and entered at the time he received the letter, the judge said: 'I would probably have written him a little note, real quick like, and said that I have entered judgment as of a certain date and then left it to him to take what alternative action he felt was necessary.'

At no time did defendant's counsel make inquiry of the district clerk as to the status of the matter, i.e. whether the judgment had been signed and entered; and, in fact, defendant's counsel took no action until the filing of the bill of review on July 26, 1972. This action was precipitated by the attempted levy of execution on July 20.

2. The Bill of Review Proceeding

The bill of review brought to set aside the judgment in the original proceedings, was docketed under a separate number in the 172nd District Court and a temporary restraining order, supported by bond in the amount of judgment, was issued restraining the levy of execution on the original judgment. By agreement of the parties, this was continued in effect as a temporary injunction pending final hearing on the bill of review. The cause was then transferred to the 58th District Court for trial.

A. Defendant's Bill of Review Pleadings

In essence, defendant set out the facts mentioned earlier in our summary of the events leading up to the entry of the judgment. Additionally, it asserted that the judgment had been entered through 'inadvertance on the part of' Judge Thomas and unknown to its counsel 'contrary to the understanding existing between' counsel and the judge. It further alleged that it had at all times intended to prosecute an appeal from any adverse judgment entered in the original suit and would have filed timely motions for new trial and would have taken the other subsequent procedural steps timely had the date of entry of the judgment been made known to it.

It prayed that the original judgment be set aside and that the court 'thereupon re-enter a judgment . . . as justice would demand.' It coupled this allegation with the assertion that it had a meritorious defense and a meritorious motion for new trial 'as is indicated by the motions' it had filed in the original suit.

This was followed by conclusory allegations that:

'(T)he loss of the right to appeal was not the result of lack of diligence on behalf of Petro-Chemical or its attorney but through a misunderstanding existing between the Court and the attorney and because of the failure of the Clerk of the Court to perform his official duty.'

Further allegations were that its "meritorious defense" included being deprived of its appeal 'through accident; and that this is unmixed with any fault or negligence' on its behalf.

B. Plaintiff's Bill of Review Pleadings

Although plaintiff's pleadings were voluminous, the basic contention, pleaded in several different versions, was that the bill of review affirmatively disclosed neglect of counsel which resulted in the failure to file either a motion for new trial or notice of appeal. It is sufficient to state, at this point, the answer to the bill of review pleaded each contention which we review under this record.

C. The Trial of the Bill of Review

Over plaintiff's objections, the court accepted a partial verdict and we first summarize the findings Made: (1) The jury failed to find that the original judgment was 'entered as the result of accident or mistake'; (2) but did find the original judgment was entered without the negligence of defendant 'either in the course of the former trial or after judgment.' The jury found: (3) that defendant was prevented from appealing because of accident or mistake; (5) that failure of defendant to file a motion for new trial was not intentional or due to conscious indifference; (12) defendant's counsel 'had some excuse (not necessarily a good excuse) for not perfecting an appeal' from the original judgment; (13) its counsel 'had some excuse (however slight) for not perfecting an appeal' from the original judgment; (14) its counsel did not intend to waive the filing of a motion for new trial; nor (15) did he intend to waive his appeal.

The court also submitted several other issues upon which the jury deadlocked and returned No answers. We summarize these issues: (4) Conditioned upon an affirmative answer to No. 3 (which the jury had answered 'Yes'), the jury was asked if 'the prevention . . . from appealing . . . was without negligence . . . in the course of the former trial or after judgment'; (6) the failure to file a timely notice of appeal or motion for new trial was 'partly due to negligence of its own counsel'; (7) whether counsel was negligent in failing, after receiving Judge Thomas's letter of May 4 to inquire of the district clerk, plaintiff's counsel, or Judge Thomas, if the judgment had already been signed; (8) if defendant's counsel was negligent in failing to make direct inquiry of the district clerk, plaintiff's counsel or Judge Thomas, within ten days after May 9, as to whether Judge Thomas had already signed the judgment; (9) if defendant's counsel was negligent in failing to file a notice of appeal or motion for new trial some time on or before May 19; (10) if defendant's counsel was negligent in failing to file a motion for new trial at some time prior to June 8; (11) if defendant's counsel was negligent in failing to make direct inquiry, before June 8, of the district clerk, or the judge.

After overruling plaintiff's motion to declare a mistrial because of the failure of the jury to answer all of the issues, and their alternative motion for judgment, the court entered judgment granting the bill of review and set aside the judgment in the original suit. Further recitations were to the effect that the court considered 'all matters in controversy' in the original suit including defendant's motions therein for judgment non obstante veredicto. The court then entered judgment in the same amount in favor of plaintiff as was entered in the original suit; and, specifically granted defendant leave to file a motion for new trial (apparently in the original suit) 'if it so desires.'

Plaintiff's motion, with all the assignments being directed to alleged errors in the bill of review proceedings, was overruled and the appeal was duly perfected. Defendant's motion for new trial, with all the assignments being directed to alleged errors in the original trial, was also overruled. Under our view of the record, we do not find it necessary to pass directly upon plaintiff's several motions asserting that the defendant failed to perfect its appeal from the order overruling its motion for new trial.

3. Sequence of Events

In order that the several important dates may be kept clearly in mind, we set out the following sequence of events in the original suit...