Gill v. Rosas

• Citation: 821 S.W.2d 689
• Decision Date: 04 December 1991
• Docket Number: No. 08-91-00036-CV,08-91-00036-CV
• Court: Court of Appeals of Texas
• Parties: David GILL, Appellant, v. Rene M. ROSAS, Appellee.

Page 689

821 S.W.2d 689

David GILL, Appellant, v. Rene M. ROSAS, Appellee.

No. 08-91-00036-CV.

Court of Appeals of Texas,

El Paso.

Dec. 4, 1991.

John Whitaker, Glen Sutherland, Escobar & Escobar, El Paso, for appellant.

James C. Jones, Grambling & Mounce, El Paso, for appellee.

Before OSBORN, C.J., WOODARD, J., and STEPHEN F. PRESLAR, C.J. (Retired), sitting by assignment.

OPINION

WOODARD, Justice.

This is an appeal from a summary judgment in favor of the Defendant below. We affirm.

Appellee, by cross-point, moves this Court to dismiss this case for want of jurisdiction. A first summary judgment was signed September 12, 1990. On September 28, a Motion for New Trial was filed. The new trial was granted, but a second summary judgment similar to the first was also granted on the same day, November 5, 1990. Cost bond was filed on December 12, 1990, more than thirty days from the signing of the second judgment, but within ninety days thereof.

Tex.R.App.P. 41(a)(1) requires that the bond or affidavit in lieu thereof shall be filed within thirty days after judgment is signed, or within ninety days after the judgment is signed if a timely Motion for New Trial has been filed by any party. Appellee asserts that because no Motion for New Trial was filed after the second judgment was signed, the Appellant was required to perfect his appeal within thirty days of the second judgment. Appellee cites American Home Assurance Company v. Faglie, 747 S.W.2d 5 (Tex.App.--El Paso 1988, writ denied). In that case, a Motion for a New Trial was filed within thirty days of the first judgment. In the then extended ninety day time period that the trial court retained plenary power, the trial court vacated its first judgment and entered another that was inadvertently dated some thirteen days before the date of the first judgment. The cash deposit was not made within thirty days of the signature date of the second judgment filed. The case was then dismissed for want of jurisdiction by this Court with a short opinion. (The date was corrected subsequently by a nunc pro tunc judgment, and the appeal was reinstated). In that case, the Motion for New Trial particularly related to certain decrees of the trial court in the first judgment filed that were not carried forth to the reformed second judgment. The wording of the Motion for a New Trial could only logically be correlated to the first judgment filed. In this case, both the first and second judgments are substantially alike and are based upon the same pleadings of negligence with the same result. The Motion for a New Trial harmonizes with both judgments. The Motion for New Trial filed before the second judgment is treated as a premature document under Tex.R.App.P. 58(a) and (c), and extends the time for filing the appeal under Rule 41(a)(1) to date from the signing of the second judgment. Syn-Labs, Inc. v. Franz, 778 S.W.2d 202 (Tex.App.--Houston [1st Dist.] 1989, no writ); Miller v. Hernandez, 708 S.W.2d 25 (Tex.App.--Dallas 1986, no writ). The bond filed was timely. The cross-point is overruled.

The chronology of the case at hand is that the Appellant sued the Appellee by petition alleging the Appellee negligently allowed his dog to run at large and attack the postman Appellant. In an affidavit supporting a Motion for Summary Judgment, the Appellee stated that the dog had never exhibited any violent propensities or bitten anyone before. Depositional evidence of the Appellant to the effect that the attack by the small dog occurred on the premises of the Appellee, and that Appellant also knew of no prior attacks by the dog in question, was additionally offered. Summary judgment was entered. Then Appellant filed a Motion for a New Trial specifically emphasizing the El Paso city ordinances that prevent dogs from running at large and require them to be on a leash. On the very same subsequent day, the trial court granted the Motion to Set Aside the Summary Judgment and then entered another summary judgment without further notice.

The owner of a dog is not liable for injuries caused by it, unless it is vicious and knowledge or constructive notice of that fact is shown or brought home to the owner. It is necessary in such cases to show, by the evidence, that the owner of the dog either knew of its disposition to injure persons or property or that he had knowledge of facts which would put a person of ordinary prudence on notice that permitting his dog to run at large might result in assaults or depredations by the dog and...