Jordan v. Jordan

• Decision Date: 11 January 2001
• Citation: 36 S.W.3d 259
• Parties: (Tex.App.-Beaumont 2001) SUSAN B. JORDAN AND RON JORDAN, Appellants v. KATHY STRINGER JORDAN AND JERRY JORDAN, Appellees NO. 09-00-062 CV
• Court: Texas Court of Appeals

Page 259

36 S.W.3d 259 (Tex.App.-Beaumont 2001)

SUSAN B. JORDAN AND RON JORDAN, Appellants v. KATHY STRINGER JORDAN AND JERRY JORDAN, Appellees

NO. 09-00-062 CV

In The Court of Appeals Ninth District of Texas at Beaumont

January 11, 2001.

February 15, 2001.

On Appeal from the 217th District Court Angelina County, Texas Trial Cause No. 25,361-91-11

[Copyrighted Material Omitted]

Before Walker, C.J., Burgess, and Gaultney, JJ.

OPINION

GAULTNEY, Justice.

This bill of review case is an effort by Kathy and Jerry Jordan to set aside a $1,000,000 default judgment entered against them. The key issue on appeal is whether the subsequent judgment entered in the bill of review proceeding properly set aside the default judgment. We hold that the default judgment was properly vacated and we affirm the subsequent take-nothing judgment.

The Facts

This decade-long litigation has its origin in a family camping trip to the lake. On Sunday, April 23, 1989, Susan Jordan and her husband, Ron Jordan, were camping near Lake Sam Rayburn in Angelina County, Texas, with Ron's brother, Jerry Jordan, and Jerry's wife, Kathy. Kathy owned a ski boat. After camping out Saturday night, the group decided to use the boat to travel to a fishing tournament on the lake. As they were returning from the tournament, the boat bounced as it passed over the wake of a houseboat. Susan claimed the bounce hurt her back. Jerry and Kathy claimed the bounce did not. Susan and Ron sued Jerry and Kathy. Jerry was sued for negligent driving, and Kathy was sued for negligently entrusting her boat to her husband Jerry.

The Jordans first sued the Jordans on April 5, 1990, in federal court in Louisiana. On June 18, 1990, Kathy and Jerry filed an answer in federal court although they had not yet been served with process. The attorney for their insurance company, which was also a defendant in federal court, filed the answer on behalf of all three defendants. On August 22, 1990, Susan and Ron filed the same claims against Kathy and Jerry in state district court in Angelina County, Texas, even though the federal case was still pending. The insurance company was not joined in Texas state court. Both lawsuits arose out of the same facts, i.e., the back injury Susan claims to have sustained on Kathy's boat.

Even though an answer had already been filed in federal court, process was served in both the federal lawsuit and the state lawsuit at the same time. When Kathy reported to their insurance company that she and Jerry had been sued by Susan and Ron, she was told that the insurance company was aware of the case. On September 11, 1990, the federal case was dismissed for lack of jurisdiction by agreement of the parties. No answer was filed in state district court in Texas. On April 24, 1991, Susan and Ron obtained a default judgment in state court that ordered Kathy and Jerry to pay them $1,000,000.

The district clerk did not send notice of the default judgment to Kathy and Jerry. They found out about the judgment in July or August, 1991. In November 1991, a bill of review action was filed by Kathy and Jerry.

The Trials

The trial court held a bench trial on the bill of review and set aside the default judgment. At the request of Ron and Susan, the trial judge made findings of fact and conclusions of law. He ordered that the underlying claim for back injury be set for jury trial. Susan and Ron appealed to this Court and obtained a reversal. See Jordan v. Jordan, 890 S.W.2d 555 (Tex. App.-Beaumont 1994), rev'd, 907 S.W.2d 471 (Tex. 1995). Kathy and Jerry then appealed to the Texas Supreme Court, which reversed this Court for lack of jurisdiction. The Supreme Court found the trial court's judgment in the bill of review action was interlocutory and not subject to appeal because the order did not dispose of the case on the merits. Jordan, 907 S.W.2d at 472. The Supreme Court noted that the trial court's order which set aside the default judgment also ordered a jury trial on the merits of the underlying back injury claim. Id.

The trial court held a jury trial on the merits on September 7 and 8, 1999. Finding no negligence, the jury returned a take-nothing verdict against Susan and Ron. The trial court entered a judgment on January 4, 2000, which provided that Susan and Ron take nothing from Kathy and Jerry. The judgment did not expressly incorporate the 1993 interlocutory order that set aside the default judgment. At the conclusion of the 2000 judgment is the language "All other relief not specifically granted is hereby denied[,]" typically referred to as a "Mother Hubbard" clause.

The Issues On Appeal

Susan and Ron have appealed to this Court requesting reinstatement of the default judgment for $1,000,000. Appellants do not ask for a new trial although in issue number 4 they do challenge the admission of evidence concerning Jerry's good driving record. Their request for reinstatement of the $1,000,000 default judgment in issue numbers 1 and 2 is based on the premise that the take-nothing judgment entered by the trial court does not state that it sets aside the 1991 default judgment. Therefore, appellants argue, the default judgment is still in place. They then argue that because the take-nothing judgment also contains a so-called "Mother Hubbard clause," it is a final judgment which cannot be revisited and which, in effect, denied Kathy and Jerry their prayer that the default judgment be set aside. Appellants contend in issue number 3 that appellees failed to meet the bill of review proof requirements in the 1993 bench trial.

In contrast, the appellees contend the 2000 judgment is interlocutory, thereby depriving this Court of jurisdiction over the case. Alternatively, they argue that the 1993 order and the 2000 judgment are consistent and must be read together. Finally, they ask that we abate the appeal and remand the case for entry of a final judgment setting aside the default judgment if we do not hold that the orders as read together constitute a final judgment.

As explained herein, we hold that the 2000 judgment is a final judgment which, when combined with the consistent 1993 interlocutory order setting aside the default judgment, disposes of all the parties and claims in the case. We affirm the trial court's judgment that appellants take nothing from appellees.

The Bench Trial

We begin our analysis with the bill of review bench trial which resulted in the 1993 order setting aside the default judgment. A bill of review is an equitable remedy designed to cure manifest injustice. French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967). To set aside the $1,000,000 default judgment against them appellees Kathy and Jerry had the burden of proving the three elements of a bill of review: (1) A meritorious defense to the back injury claim; (2) which they were prevented from making, either by the fraud, accident, or wrongful act of appellants, Susan or Ron, or by a mistake or error of the court or a court official in the discharge of official duties; and (3) unmixed with any fault or negligence of appellees, Kathy and Jerry. See Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979). Appellants do not attack the first element. The trial court found that a meritorious defense existed, a finding later supported by the jury's finding of no negligence in the trial on the merits. Appellants do attack the trial judge's conclusions on the second and third bill of review elements, so we will address those findings of the trial court.

The trial court's findings of fact have the same force as jury findings. See Greater Beauxart Garden Mun. Util. Dist. v. Cormier, 596 S.W.2d 597, 600 (Tex. Civ. App.--Beaumont 1980, no writ). The findings are binding on us unless they are so against the overwhelming weight of the evidence as to be clearly and manifestly wrong. Id. This Court has held that "[u]nless the trial court's findings are challenged by a point of error on appeal, they are binding on the appellate court." Wade v. Anderson, 602 S.W.2d 347, 349 (Tex. Civ. App. - Beaumont 1980, writ ref'd n.r.e.). Here, appellants attack the granting of the bill of review and the legal conclusions reached, but they do not point to specific findings of fact which they consider wrong.

We review the trial court's legal conclusions de novo. Nelkin v. Panzer, 833 S.W.2d 267, 268 (Tex. App. - Houston [1st Dist.] 1992, writ dismissed w.o.j.). In doing so, we will treat appellant's issue broadly "as covering every subsidiary question that is fairly included." Tex. R. App. P. 38.1(e).¹ Here, the trial court made fifty-seven (57) separate findings of fact. We have reviewed the record and we find that the trial court's findings are supported by the evidence. We also agree with the trial court's conclusions of law. We will briefly discuss the findings of fact and then address the trial court's legal analysis.

The findings of fact establish that the second and third elements of the bill of review were proven. For example, with respect to the second element, the trial court found that the wrong address was used to attempt service of the motion for default judgment. The court also found that Susan and Ron failed to notify the court that Kathy and Jerry were in fact represented by an attorney and failed to notify that attorney about the signing of the default judgment. The court found that Susan and Ron failed to provide the court with the identity and address of the attorney representing Kathy and Jerry. Additionally, the trial court found that notice of default was never issued by the Angelina County District Clerk to Kathy and Jerry. With respect to the third element, the court found, for example, that at the time Kathy and Jerry were served with citations in the state court lawsuit, they reasonably believed that it was only a part of the federal lawsuit and that their attorney in the federal lawsuit would handle the matter. The trial court found no fault on their part which resulted in the default...