Detox Industries, Inc. v. Leeds
| Decision Date | 05 May 1989 |
| Docket Number | No. 07-89-0050-CV,07-89-0050-CV |
| Parties | DETOX INDUSTRIES, INC., Appellant, v. Leroy J. LEEDS, Appellee. |
| Court | Texas Court of Appeals |
W. Richard Ellis, III and Kathryn A. Carpenter, McCullock, Ellis & Payne, Houston, for appellant.
Kenneth M. Morris and Alex M. Mair, Morris & Campbell, Houston, for appellee.
Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
Detox Industries, Inc., perfected this appeal from a summary judgment, rendered in a garnishment proceeding, decreeing its monetary liability to Leroy J. Leeds. With six points of error, Detox seeks a reversal and remand. In the state of the appellate record, the points will be overruled and the judgment will be affirmed.
Detox had the burden to present a record sufficient to show the alleged errors requiring reversal. Tex.R.App.P. 50(d). The transcript presented does not contain some of the attachments referred to in the pleading instruments; however, it is sufficient for a decision on the appeal.
Leeds initiated the garnishment proceedings underlying this appeal to satisfy a judgment he had secured against Thomas A. Dardas in the principal sum of $30,000, together with pre- and post-judgment interest thereon at the rate of ten percent per annum. Detox answered the writ of garnishment by verifying that it was indebted to Thomas A. Dardas, aka Thomas A. Dardas, Trustee, in the amount of $52,499.72.
Then, Leeds moved for summary judgment. The ground of his motion was that his judgment against Dardas, a true and correct copy of which was attached and incorporated, and Detox's verified answer to the writ of garnishment established his entitlement as a matter of law to judgment against Detox in the amount of $43,885.70, the amount owing on the Dardas judgment.
Detox filed a response by which it sought the denial of the motion for summary judgment. The bases for the denial was that (1) Detox had previously been served with a writ of garnishment in a companion case, cause no. 85-61519 on the docket of the 125th Judicial District Court of Harris County, styled James Gullett v. Thomas A. Dardas, a/k/a Thomas A. Dardas, Trustee, and Detox Industries, Inc.; (2) it had answered in the cause that it was indebted to Dardas in the amount of $52,499.72; and (3) the funds previously garnished in the Gullett case are not available to satisfy the judgment in the present proceeding. Detox declared that certified copies of the writ of garnishment and its answer in the Gullett suit are attached as exhibits "A" and "B," but the transcript does not contain the exhibits.
Leeds answered Detox's response with a verified pleading. Leeds first asserted that Detox's response was not timely filed and should not be considered. In this connection, Leeds represented that his motion for summary judgment is set for submission on 9 September 1988, that Detox's response was filed on 2 September 1988, and that the "[r]esponse was not filed 'seven days prior to the day of hearing' within the meaning of TEX.R.CIV.P. 166a."
After other replies, Leeds next interposed the claim that none of Detox's alleged court filings in the Gullett cause are certified. Finally, Leeds avowed that his counsel, who also represents James Gullett in cause no. 85-61519-D, has filed a nonsuit in that cause. Attached to the answering response were copies of the executed motion for the nonsuit and an unsigned, proposed order for the granting of the nonsuit motion and the dismissal of the Gullett case.
Thereafter, on 8 September 1988, Detox moved for leave to file a supplemental response to the motion for summary judgment on the ground that the nonsuit in the Gullett cause had materially altered the circumstances surrounding the motion. Detox's motion was accompanied by a proposed, unsigned order granting leave.
The supplemental response submitted at the same time purports to evince that (1) at the time of answer, Detox requested issuance of service on Dardas in order that he may present any claims that he has to the debt and, since Dardas has not yet appeared, Detox requested that its motion for continuance, submitted in response to the motion for summary judgment, be granted; (2) the debt is properly before the Gullett court and is not available for satisfaction of the judgment in this proceeding, as shown by the certified copy of the Gullett court's order attached as exhibit B; (3) Leeds has not shown that the nonsuit has been signed by the Gullett court; and (4) contrary to the affidavit of Leeds's counsel, the pleadings in the Gullett cause attached to its response were certified copies. Neither Detox's motion for continuance nor the Gullett court's order referred to as exhibit B is included in the transcript.
On the same day, September 8, Detox's attorney filed a written notice to all attorneys of record that on Friday, 16 September 1988 at 9 a.m., the Leeds motion for summary judgment, Detox's motion for continuance, and its motion for leave to file a supplemental response to the motion for summary judgment would be presented to the court for an oral hearing. No order respecting the hearing appears in the record.
The next transcript entry is the summary judgment signed on 19 September 1988. By it, the court, finding that Leeds's motion for summary judgment should be granted, ordered that Leeds is awarded judgment against Detox for the principal sum of $43,981.19, together with post-judgment interest at the rate of ten percent per annum, and that all relief not expressly granted is denied.
Nine days later on September 28, Detox filed a motion for new trial. A new trial was sought on the grounds that (1) the debt owed by Detox to Dardas has not yet matured or been demanded by Dardas and, therefore, Leeds is not entitled to recover; (2) the notice given to Detox, a true and correct copy of which is attached, does not have a complete notification to Dardas concerning his right to replevy and, since Dardas was not brought in as a party before summary judgment was rendered, the court should reconsider the granting of summary judgment; and (3) summary judgment was inappropriate because the prior garnishment proceedings in the Gullett case raised a fact issue whether Leeds had any entitlement to the indebtedness he sought to garnish. The copy of the notice mentioned in item 2 is not shown in the transcript.
Detox coupled its motion for new trial with an amended answer to the writ of garnishment. By the amendment, Detox certified to the debt owed Dardas, but stated that it is not yet due and owing.
The transcript does not show an order signed by the court pertaining to the motion for new trial. The transcript does include the court's docket sheet on which is recorded, with the initials of the trial judge, information that Detox's motion was under advisement and was, on 20 December 1988, denied. However, before that date, the motion was overruled by operation of law on 5 December 1988. Tex.R.Civ.P. 329b(c); Tex.R.Civ.P. 4. As a result, the recorded denial of the motion on 20 December 1988 is a nullity. Taack v. McFall, 661 S.W.2d 923, 924 (Tex.1983).
Preliminary to any address of Detox's points of error, a threshold consideration is the sole position of Leeds, as expressed in his brief, that Detox has waived any right to complain. Otherwise, Leeds has not replied to Detox's points.
The waiver obtains, Leeds states, because the hearing on his motion for summary judgment was set for 9 September 1988; Detox filed its response to the motion on 2 September 1988, which was later than the seven-days-prior-to-the-day-of-hearing requirement of Rule 166a(c), Texas Rules of Civil Procedure, and, thereby, the motion for summary judgment should be construed as unopposed; Detox's motions for continuance and for leave to file a supplemental response were never granted; and Detox's motion for new trial relates only to matters never properly submitted to the trial court. Measured by this record, the position is not well-taken.
At the outset, it is observed that there is nothing in the appellate record to evidence that a hearing on the motion for summary judgment was set for 9 September 1988; indeed, aside from the previously mentioned notice by Detox's attorney that the Leeds motion for summary...
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