Gates v. Dow Chemical Co.
| Decision Date | 13 July 1989 |
| Docket Number | No. C14-87-987-CV,C14-87-987-CV |
| Citation | 777 S.W.2d 120 |
| Parties | Hoover GATES, Jane Gates and Sheridan Gates, Appellants, v. The DOW CHEMICAL COMPANY, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
A. Glenn Diddel, III, Houston, for appellants.
J. Greg Dow, Pete Andarsio, Houston, John W. Phillips, Huntsville, John M. Zukowski, James Moore, Robert C. Williams, Houston, for appellee.
Before PAUL PRESSLER, CANNON and ELLIS, JJ.
The trial court vacated its order granting the appellants a new trial. Its ability to do so is questioned. We affirm.
In March of 1984 appellants sued for injuries they claim they sustained from exposure to chemical toxins while living in a newly constructed log home. Appellants claim the toxins were from two sources: (1) sour gas blowouts and hydrogen sulfate emissions from a nearby gas sweetening plant and (2) pentachlorophenol, a wood preservative applied to the logs used in constructing the log home. Appellee was joined in the suit in August of 1985. In February of 1986, appellee filed a motion for summary judgment. Several defensive theories were presented. Only one of them (product identification) is at issue here. In March of 1986 appellants were granted a continuance. In July of 1986 a hearing on the motion for summary judgment was held and appellants failed to appear. The trial court withheld ruling on the motion for summary judgment until appellants were given another opportunity to respond.
Some attorney's then left the law firm which appellants had retained. The lead attorney, who left, withdrew as counsel in August of 1986. He was later retained to oversee the case at his new firm.
In November of 1986 the appellants were given until January 30, 1987 to respond to appellee's motion for summary judgment. Several avenues of discovery were then pursued. Appellants filed a response to the motion for summary judgment on January 30, 1987. Attached to the response were answers to a request for admissions from a federal lawsuit in Kansas. Despite the discovery, the appellants were unable to identify appellee as the manufacturer of the pentachlorophenol used to treat the logs in appellants' home. Not only were the answers to the attached request for admissions from a totally separate lawsuit, they were answered by the co-defendant, Chapman Chemical Company. It is not known whether the appellee was a party to that lawsuit. Answers to requests for admissions are admissible only against the party filing them. Griffith v. Pecan Plantation Owners Association, Inc., 667 S.W.2d 626 (Tex.App.--Fort Worth 1984, no writ); Fort Bend I.S.D. v. Weiss, 570 S.W.2d 241 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ).
At the hearing of February 10, 1987, Judge Erwin Ernst granted summary judgment for the appellee. The judge obviously and properly did not consider the answers to the request for admissions from the Kansas lawsuit. On March 11, 1987 appellee moved for severance to obtain a final judgment. On April 10, 1987 appellants filed their response to the motion to sever. Attached to the response were affidavits by representatives of the two co-defendants. On July 13, 1987 the hearing was held and severance was ordered.
Appellee filed a timely motion for new trial on August 11, 1987. See Tex R.Civ.P. 329b. A hearing on the motion was held on Monday, September 28, 1987 before Judge Jerry Sandel although the seventy-five day period set forth in Rule 329b expired on Saturday, September 26, 1987. At the hearing Judge Sandel granted the motion for new trial. On October 13, 1987 appellee filed a motion to reconsider. Maneuvering between the appellants and appellee resulted in recusal of Judge Ernst, assignment of a visiting judge, and objections to the assignment of the visiting judge. A hearing was scheduled on October 22, 1987 but cancelled. The next day Judge Sandel vacated the order granting the new trial without holding a hearing.
Appellants claim that the judge lacked the power to vacate his granting of new trial after the seventy-five day period prescribed under TEX.R.CIV.P. 329b(c) (Vernon 1989). Appellee contends that this period had expired on Saturday, September 26, 1987 and since Monday, September 28, 1987 was beyond the seventy-five day period, the court lacked power to grant the new trial. Appellee's contention is in error. TEX.R.CIV.P. 4 (Vernon 1989) provides as follows:
.... the last day of the period so computed is to be included, unless it is a Saturday, Sunday or Legal Holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday or a Legal Holiday.
(emphasis added). Consequently, the last day of the seventy-five day period was Monday, September 28, 1987.
Appellants' claims, however, are also in error. Rule 329b provides as follows:
(d) The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.
(e) If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely filed motions overruled, either by a written or signed order or by operation of law, which ever occurs first.
(emphasis added). Appellants claim that the language gives the trial court the plenary power only to vacate, modify, correct or reform the judgment, and since the granting of a new trial is not a judgment, the judge lacked the power to vacate its order. In support appellants cite Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961). The facts in Fulton are similar with regard to the granting and subsequent vacating of a new trial. At that time, Rule 329b Section 3 stated, "all motions must be determined within and not exceeding forty-five (45) days after the original or amended motion is filed." Fulton, 346 S.W.2d at 826 (emphasis added). The rule was completely rewritten effective January 1, 1981. Included in these changes were: (1) withdrawal of the word "must"; (2) the time the court has to rule on the motion was extended to seventy-five days; (3) the motion is overruled by operation of law if not ruled upon within seventy-five days; (4) the court's plenary power was extended to thirty days after the judgment; (5) no additional time is extended for amended motions for new trial; and (6) the presentment requirement and agreed postponements were eliminated. Plainly, the rule has been changed significantly since it was addressed in 1961 by the Supreme Court in Fulton.
If the appellants' rationale is followed, seventy-five days after a trial court has granted a new trial, it loses power to rule in a case and lacks the power to reform, modify, correct or vacate the order granting a new trial. This is not in accord with the plenary power recognized in Rule 329b. Once a new trial is granted, the trial court has exclusive jurisdiction in the case. Rule 329b(c) does give the trial court seventy-five days after the judgment is signed to rule on a motion for new trial. Rule 329b subsections (e) and (c) are read together, it actually gives the trial court one hundred and five (105) days to rule on a motion for new trial. The two subsections read as follows:
(c) In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.
(e) If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely filed motions overruled, either by a written or signed order or by operation of law, which ever occurs first.
(emphasis added). Subsection (e) gives the trial court plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all timely filed motions are overruled. Under subsection (c) the motion is to be considered as overruled only if not ruled upon within the seventy-five day period. The use of the word "considered" in Rule 329b(c) expresses an intention to give the trial court an additional thirty days to rule on the motion or to enter orders even after the motion for new trial is overruled by operation of law. Rule 329b(c) must be taken to mean what it says. As it has been interpreted, the trial court has an additional thirty days to grant a new trial after it has previously overruled the motion for new trial. The trial court should not be able on one hand to grant a new trial after the expiration of the seventy-five day period and, on the other hand, not be able to vacate its previous granting of a new trial during the same time period. A more consistent interpretation would be to consider the motion overruled after the expiration of the seventy-five day period and give the trial court the power both to grant a new trial or vacate a previous order granting a new trial within the next 30 days. It would be most inconsistent to hold that the court could vacate a judgment and not be able to vacate its order granting a new trial. Any other interpretation is unreasonable. After the expiration of the seventy-five days, the trial court need not rule on the motion if its intention is to overrule it. However, if the trial court chooses to grant a new trial, it can do so within in the thirty days subsequent to the expiration of the seventy-five day period.
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