Clark v. McFerrin

• Decision Date: 10 November 1988
• Docket Number: No. 13-87-340-CV,13-87-340-CV
• Citation: 760 S.W.2d 822
• Parties: Debra M. CLARK, Individually and as Next Friend of Keisha Deshawn Clark and Zachary Ray Clark, Appellants, v. Jack D. McFERRIN and Geraldine McFerrin, Appellees.
• Court: Texas Court of Appeals

Page 822

760 S.W.2d 822

Debra M. CLARK, Individually and as Next Friend of Keisha Deshawn Clark and Zachary Ray Clark, Appellants, v. Jack D. McFERRIN and Geraldine McFerrin, Appellees.

No. 13-87-340-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 10, 1988.

Rehearing Denied Dec. 8, 1988.

James H. Bjorum, Cox, Dodson & Bjorum, Paul Dodson, Corpus Christi, for appellants.

Roberta J. Hegland, Savannah Robinson, Corpus Christi, for appellees.

Before NYE, C.J., and KENNEDY and BENAVIDES, JJ.

OPINION

NYE, Chief Justice.

This is a personal injury case. A jury awarded damages to appellants-plaintiff's Debra Clark (the mother) and Keisha Clark (Debra's daughter). Appellant-plaintiff, Zachary Clark (Debra's son), did not receive a damage award. The trial court entered a judgment on the verdict in favor of appellees-defendants, Jack and Geraldine McFerrin (grandparents of Debra's children) that appellants, Debra and Keisha Clark, take nothing by their suit.

On November 7, 1983, appellants, Debra Clark and her two children, Zachary and Keisha, were at the home of Debra's parents, appellees, Jack and Geraldine McFerrin. Debra was painting the interior of their home. Upon finishing, she placed a coffee can filled with paint thinner on top of a deep freezer that was located on the porch. In order to open the freezer, Mrs. McFerrin, the grandmother, removed the coffee can and placed it on a rag on a table next to the freezer. Debra's thirteen month old child, Keisha, went onto the porch and pulled the coffee can off of the table. Mrs. McFerrin heard what she described as the sound of a spoon being dropped in the distance. She looked toward the porch and saw that the porch and her grandchild were on fire. Mrs. Clark testified that she was told that the can of thinner hit the floor, contacted the gas water heater, and ignited.

The jury found the grandmother, Geraldine McFerrin, was negligent but determined that her negligence was not a proximate cause of appellants' injuries. ¹ The trial court entered a take-nothing judgment based on the jury's determination of no proximate case of the grandmother's negligence.

Appellees have filed a motion to dismiss this appeal, contending that appellants should have perfected their appeal from the date the trial court entered its original judgment rather than from a later date when the original judgment was reinstated.

The trial court's take-nothing judgment on the verdict in favor of appellees was entered on February 25, 1987. Appellants filed a motion for new trial on February 27, 1987, which was granted on April 2, 1987. Then, on April 10, 1987, appellees filed a motion to reinstate the trial court's judgment or, alternatively, to reconsider appellant's motion for new trial. On April 30, 1987, the trial court reinstated the original judgment without any change other than the date. On May 18, 1987, appellants filed a second motion for new trial and on June 26, 1987, this motion was denied. On July 9, 1987, appellants filed their cost bond on appeal.

An appeal is perfected by filing a cost bond, affidavit, or cash deposit within ninety days from the signing of a judgment when a motion for new trial is filed. Tex R.App.P. 41(a)(1). If a judgment is corrected, modified, or reformed "in any respect," the time for appeal begins to run from the date the corrected judgment is signed. Tex.R.Civ.P. 329b(h). Moreover, a motion for new trial, filed before a corrected judgment is entered, extends the time for filing the appeal bond until ninety days after the date the corrected judgment is entered as long as the substance of the motion is such as could properly be raised with respect to the corrected judgment. Miller v. Hernandez, 708 S.W.2d 25, 26-27 (Tex.App.--Dallas 1986, no writ).

The judgment entered by the trial court on February 25, 1987, and the reinstated judgment are identical except for the date of entry on the latter judgment. After the original judgment had been signed, appellants timely filed a motion for new trial which was granted by the trial court. At this point, the appellants had no desire to appeal since the adverse judgment had been set aside. The trial court subsequently changed its mind again and reinstated its earlier judgment by entering an identical judgment except for the date.

While we are cognizant of the language in Rule 329b(h), we also pause to recognize the Supreme Court's original admonition in Anderson v. Casebolt, 493 S.W.2d 509 (Tex.1973) wherein our high court specifically condemned similar actions of the trial courts in attempting to enlarge the period for perfecting an appeal by signing a subsequent judgment. The Supreme Court said then that where two judgments were identical except for the date of entry, the second judgment could serve no purpose other than to enlarge the time for appeal.

In Check v. Mitchell, 758 S.W.2d 755 (1988), the Supreme Court laid this question to rest with its interpretation of rule 329b(h). The Court stated: "We hold that any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date the modified, corrected or reformed judgment is signed."

We therefore hold that the change in the date of entry of the reinstated judgment does qualify as a modification, correction, and/or reformation of the judgment to start anew the timetable for appellate review. Appellee's motion to dismiss the appeal for lack of jurisdiction is overruled.

Appellant's, Debra, Keisha, and Zachary Clark's, points of error raise both "no evidence" points and "insufficient evidence" points. In considering these points of error, we will follow the well established test set forth in Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

By their first point of error, appellants, Debra, Keisha, and Zachary Clark, argue that the trial court erred in submitting special issue four because Debra Clark's lack of knowledge of any dangerous condition was established as a matter of law and there was no evidence to support the jury's finding.

This case involves a premises liability cause of action. In order for appellants, Debra, Keisha, and Zachary Clark, to recover damages from appellees, Jack and Geraldine McFerrin, it was incumbent for them to prove: (1) that appellees, Jack and Geraldine McFerrin, had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to appellants, Debra, Keisha, and Zachary Clark; (3) that appellees, Jack and Geraldine McFerrin, did not exercise reasonable care to reduce or eliminate the risk; and (4) that appellees, Jack and Geraldine McFerrin's, failure to exercise this care proximately caused appellants, Debra, Keisha, and Zachary Clark's, injuries. Tanner v. BDK Productions Co., Inc., 671 S.W.2d 941, 943 (Tex.App.--Corpus Christi 1984, no writ).

Special issue number four asked the jury whether Debra Clark had actual knowledge of the dangerous condition. The jury answered "yes" to this issue.

An ultimate fact is one that is essential to the right of action or matter of defense, and the trial court has the duty of submitting only ultimate or controlling issues. Cotter v. Moore, 634 S.W.2d 332, 336 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.); Bounds v. Caudle, 611 S.W.2d 685, 687 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.); Lopez v. Hernandez, 595 S.W.2d 180, 182 (Tex.Civ.App.--Corpus Christi 1980, no writ); Neuhaus v. Kain, 557 S.W.2d 125, 135 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.); Perales v. Braslau's Furniture Co., 493 S.W.2d 638, 640 (Tex.Civ.App.--Corpus Christi 1973, writ ref'd n.r.e.). Issues that are not ultimate or controlling are characterized as evidentiary issues and do not have to be submitted to the jury; or, if submitted, may be disregarded as immaterial. Estate of Lee v. Continental Trailways, 564 S.W.2d 392, 394 (Tex.Civ.App.--Dallas 1978, writ ref'd n.r.e.); Neuhaus, 557 S.W.2d at 135; Skeen v. State, 550 S.W.2d 713, 715 (Tex.Civ.App.--El Paso 1977, writ ref'd n.r.e.); Fidelity & Casualty Co. of New York v. Jefferies, 545 S.W.2d 881, 886 (Tex.Civ.App.--Tyler 1976, writ ref'd n.r.e.); Perales, 493 S.W.2d at 640.

Special issue number four does not inquire of an ultimate fact issue which would have impeded appellants, Debra, Keisha, and Zachary Clark's, cause of action. This issue is evidentiary and may be disregarded as immaterial. See Perales, 493 S.W.2d at 640. We hold that the submission of special issue four did not amount to such a denial of appellants', Debra, Keisha, and Zachary Clark's, rights as was reasonably calculated to cause the rendition of an improper judgment in the case. Tex.R.App.P. 81(b)(1). The first point of error is overruled.

By their third point of error, appellants, Debra, Keisha, and Zachary Clark, argue that the trial court erred in denying their motion for judgment and motions for new trial because there was no evidence or insufficient evidence to support the jury's finding that Debra Clark had actual knowledge of the dangerous condition.

Appellant, Debra Clark, testified that she grew up in appellees', Jack and Geraldine McFerrin's, home and was familiar with the porch. She stated that she originally placed the coffee can full of paint thinner in the porch on top of the freezer. The jury could have logically determined that she had actual knowledge of a potentially dangerous condition by placing a flammable liquid in a location where its removal would be necessary in order for someone to open the freezer. We hold that the evidence was sufficient to substantiate the jury's finding that Debra Clark had actual knowledge of the dangerous condition. The third point of error is overruled.

By their second point of error, appellants, Debra, Keisha, and Zachary Clark, argue that the trial court erred in...