Fletcher v. Blair
| Decision Date | 12 August 1992 |
| Docket Number | No. 3-91-077-CV,3-91-077-CV |
| Citation | 843 S.W.2d 601 |
| Parties | Marcilea FLETCHER, Appellant, v. Allison Jennifer BLAIR; Patricia Huntington, a/k/a Patience Huntington; Brett James Strasma; and Paula Kay Galbraith, Appellees. |
| Court | Texas Court of Appeals |
Rehearing Oct. 28, 1992.
Jay Doyle, Kuhn, Doyle & Kuhn, P.C., Austin, for appellant.
John F. Williams, Clark, Thomas, Winters & Newton, Austin, for Allison Jennifer Blair.
John Greytok, Fulbright & Jaworski, Austin, for Patricia Huntington.
Brantley Ross Pringle, Jr., Bankston, Wright & Greenhill, Austin, for Brett James Strasma.
Douglas W. Alexander, Brown McCarroll & Oaks Hartline, Austin, for Paula Kay Galbraith.
Before POWERS, JONES and B.A. SMITH, JJ.
This is an appeal from an order of dismissal following the imposition of so-called "death penalty" discovery sanctions. The district court dismissed the cause after striking appellant Marcilea Fletcher's pleadings for alleged discovery abuse. Tex.R.Civ.P.Ann. 215 (Supp.1991). In two points of error, Fletcher alleges that the district court erred by: (1) abusing its discretion in striking her pleadings and dismissing the cause; and (2) depriving her of her claim without federal due process and state due course of law.
Fletcher filed the underlying lawsuit for personal injuries she allegedly sustained while she was a passenger in a vehicle appellee Allison Jennifer Blair was driving. Blair's vehicle collided with two other vehicles driven by appellees Brett James Strasma and Paula Kay Galbraith. Fletcher claims she suffered closed-head injuries, severe headaches, broken teeth, thoracic-outlet syndrome requiring surgery, cervical injuries, numbness and tingling in parts of her body, and potential carpal-tunnel syndrome. In addition to the three drivers, Fletcher sued appellee Patricia Huntington, a/k/a Patience Huntington, for negligent entrustment of her vehicle to Blair.
During discovery, Fletcher falsely claimed on two occasions that she had received bachelor's and master's degrees from The University of Texas and was working towards a doctorate degree. After discovering the falsity of these claims, appellees filed a joint motion for sanctions based on Fletcher's statements, and the district court struck her pleadings. 1 The dismissal is effectively with prejudice because the two-year statute of limitations has run on Fletcher's claim. Tex.Civ.Prac. & Rem.Code Ann. § 16.003 (1986). At the hearing on Fletcher's motion for new trial, appellees claimed that Fletcher also misrepresented her past income on her tax returns. Fletcher originally claimed that the errors in her tax return resulted from her lack of access to her tax records and her impaired memory, but admitted at the hearing that she knew she was giving false information in response to the appellees' interrogatories. The district court denied Fletcher's motion for new trial on January 24, 1991.
The supreme court changed the law regarding "death penalty" sanctions during the pendency of this appeal. See TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991). We believe the district court should have the opportunity to reconsider the rulings of which appellant complains in light of TransAmerican. We will, therefore, vacate the district court's order of dismissal and remand the cause. See Welex v. Broom, 816 S.W.2d 340 (Tex.1991).
The dissent contends that this Court lacks the power to nullify the district court's order of dismissal without first finding error. We disagree. Contrary to the dissent, we believe that the verbs "vacate" and "reverse" have different meanings. "Reverse" is properly used only when the higher court first determines that the lower court committed an error of law. "Vacate" is properly used in at least the following circumstances: (1) when a court nullifies its own judgment, ruling, or order (synonymous in this sense with "set aside" or "withdraw"); (2) when an appellate court nullifies the judgments, rulings, or orders of the courts below because the parties have settled, or the cause has otherwise become moot on appeal; and (3) when an appellate court reaches a decision in one cause on a novel legal issue, the appellate court may, without finding error: (a) nullify the judgments of the courts below in a different, second cause involving the same novel legal issue; and (b) remand that second cause to the appropriate court below for further consideration if the second cause was pending on appeal at the time the appellate court reached its decision on the relevant legal issue in the first cause (known as "vacating in light of ..."). 2
In the third example given above, it is not necessary for the appellate court to find error, because the court below was relying on the then-existing law when it rendered its judgment, ruling, or order. Whether the court below actually committed "error" in such a situation is more a question of semantics and legal philosophy. 3 Vacating the judgment, ruling, or order and remanding the cause for further consideration in light of the "new" law spares all participants the time and effort of searching for such after-the-fact "error." Although this procedure is not specifically mentioned in Texas Rule of Appellate Procedure 80(b), we hold that this Court has the inherent power to render such a judgment. 4
Accordingly, without addressing the merits of the appeal, we vacate the district-court order of dismissal and remand the cause to that court for further proceedings in light of TransAmerican.
The majority purport to nullify ("vacate") a trial-court judgment without first finding that it results from reversible error; indeed, the majority do so consciously and expressly without "addressing the merits of the appeal." We have no power to nullify in this manner a trial-court judgment that is presumed on appeal to be free of error and valid in all respects. I therefore dissent.
Fletcher perfected an appeal from a trial-court default judgment imposed as a discovery sanction. She contended the judgment was erroneous under TransAmerican Natural Gas v. Powell, 811 S.W.2d 913 (Tex.1991), a decision published by the supreme court after entry of the default judgment against Fletcher. The parties joined issue on Fletcher's three assignments of error. The cause was submitted in this Court for decision, after oral argument, based on Fletcher's claim that the record she furnished us on appeal demonstrated reversible error under TransAmerican.
The majority have declined to consider whether the record demonstrates reversible error. Therefore, they may not "reverse" the presumably correct and errorless judgment, for Texas Rule of Appellate Procedure 81(b) expressly precludes a reversal except on a finding of reversible error in the record. Tex.R.App.P.Ann. 81(b) (Pamph.1992). The majority determine then to "vacate" the trial-court judgment--to nullify that judgment irrespective of whether the record shows a reversible error.
From what source does this Court derive the power to take such an extraordinary action against a presumably error-free and correct judgment? The majority offer the following as a precept applicable to appellate review in Texas:
[W]hen an appellate court reaches a decision in one cause on a novel legal issue, the appellate court may, without finding error: (a) nullify the judgments of the courts below in a different, second cause involving the same novel legal issue; and (b) remand that second cause to the appropriate court below for further consideration if the second cause was pending on appeal at the time the appellate court reached its decision on the relevant legal issue in the first cause (known as "vacating in light of ...").
(emphasis added). The majority contend this power of an appellate court is an "inherent" power, and its exercise is indicated by use of the word "vacate" instead of the word "reverse." 1 Such is the exclusive reasoning and basis for the majority holding in this appeal.
The majority give no reasoning and cite no authority for the precept upon which they decide this appeal; it is, indeed, a novel precept so far as I am able to determine. 2 One might even say that the precept is revolutionary, for heretofore the law has always been very clear that we must reverse or affirm a trial-court judgment as dictated by the new law intervening after a trial-court judgment and before our decision on appeal--a matter discussed below.
The majority do refer to two decisions in which a court of last resort vacated the judgment of an intermediate appellate court, then remanded the appeal to that court for further consideration in light of a controlling decision published by the highest tribunal following the trial of a case. Stringer v. Black, 494 U.S. 1074, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990); Haynie v. State, 751 S.W.2d 878 (Tex.Crim.App.1988). To these, one might add the more relevant decision in Welex v. Broom, 816 S.W.2d 340 (Tex.1991). One must note, however, that these decisions do not refer at all to the matter of an "inherent" power; nor do they suggest the precept, upon which the majority rely in declining to decide this appeal, as one applicable to an intermediate appellate court such as ours. Rather, the majority employ these decisions merely in a circular course of reasoning: If a court of last resort may nullify the judgment of an intermediate appellate court when a change of law intervenes after trial, without finding error, then an intermediate appellate court must have the power to do the same thing with regard to a trial-court judgment further, there being no express authority to take such action, we must of necessity have such authority as an "inherent" power. This is not the law. It is the opposite of the law. We have no such power.
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Fletcher v. Blair
...court for further proceedings in light of TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991). See Fletcher v. Blair, 843 S.W.2d 601 (Tex.App.--Austin 1992), rev'd, 849 S.W.2d 344 (Tex.1993). The supreme court held that we could not vacate a trial court judgment and remand ......
- Blair v. Fletcher
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First Bank and F.D.I.C. v. Shiflett
...oral argument, appellants' counsel stated that we could either reverse the trial court's judgment or, under the authority of Fletcher v. Blair, 843 S.W.2d 601 (Tex.App.--Austin, 1992, n.w.h.), merely vacate the order of December 19, 1990 and remand the case to the trial court. In Fletcher, ......