Kirschberg v. Lowe

• Decision Date: 30 June 1998
• Docket Number: No. 04-98-00307-CV,04-98-00307-CV
• Parties: Morris J. KIRSCHBERG, Appellant, v. Patrick LOWE, Trustee for Armando Rey and Sylvia Rey, Debtors, and Armando Rey, Appellees.
• Court: Texas Court of Appeals

Page 844

974 S.W.2d 844

Morris J. KIRSCHBERG, Appellant, v. Patrick LOWE, Trustee for Armando Rey and Sylvia Rey, Debtors, and Armando Rey, Appellees.

No. 04-98-00307-CV.

Court of Appeals of Texas,

San Antonio.

June 30, 1998.

James L. Rodriguez, Law Office of James L. Rodriguez, San Antonio, for Appellant.

Richard D. Woods, Law Office of Richard D. Woods, San Antonio, for Appellees.

Before HARDBERGER, C.J., and DUNCAN and ANGELINI, JJ.

ON MOTION TO DISMISS

DUNCAN, Justice.

Patrick Lowe, Trustee for Armando Rey and Sylvia Rey, Debtors, and Armando Rey ask that we dismiss this appeal as untimely perfected because Morris J. Kirschberg failed to establish a new judgment date in accordance with Rule 306a, TEX. R. CIV. P. We hold Kirschberg's motion for judgment non obstante veredicto extended the appellate timetable because it was filed within the time for filing a motion for new trial and "assailed the trial court's judgment." Gomez v. Texas Dep't of Criminal Justice, 896 S.W.2d 176, 176 (Tex. 1995)(per curiam). We therefore deny the motion to dismiss as moot.

FACTUAL AND PROCEDURAL BACKGROUND

In October 1994, Patrick Lowe, Trustee for Armando Rey and Sylvia Rey, Debtors, and Armando Rey (collectively "Rey") sued Morris J. Kirschberg for legal malpractice. After a jury trial, on December 5, 1997, the trial judge signed a judgment on the verdict in favor of Rey. However, the district clerk failed to send Kirschberg notice that a judgment had been signed, as required by Rule 306a(3), TEX.R. CIV. P. ¹ As a result, Kirschberg believed a judgment had not been signed when, on December 11, he moved for judgment non obstante veredicto.

On December 15, 1997, when Kirschberg's law clerk attempted to schedule a hearing on Kirschberg's motion, he was told a judgment had been signed on December 12. However, the law clerk was unable to find the judgment during his search of the file, the clerk's office, and the presiding court. Nonetheless, on January 9--less than thirty days after December 12, the date the law clerk had been told the judgment had been signed but more than thirty days after December 5, the date judgment was in fact signed--Kirschberg's law clerk filed a motion for reconsideration or, alternatively, a new trial. After filing this motion, Kirschberg's law clerk again checked the district clerk's records. This time he found the judgment and learned it had been signed on December 5, not December 12. He was also told the judgment had not been entered until December 18 and had not been placed in the clerk's file until earlier on January 9.

On January 27, 1998, Kirschberg filed a notice of appeal and an unsworn motion under Rule 306a. In this motion, Kirschberg asked the trial court to find January 9 as the date he first acquired actual knowledge that a judgment had been signed on December 5. One week later, Kirschberg filed an amended Rule 306a motion containing the following allegations:

[ On December 15, 1997 Movant's undersigned counsel was told by Judge Gallardo that said Judge had signed respondent's Final Judgment on December 12, 1997.

[ Movant checked the court records of December 15, 1997 and subsequently but no copy of said Judgment was in the court file.

[ [On] January 9, 1998 Movant again checked the court file for this case and [ Movant never received notice of the Judgment from the clerk of court as required by Rule 306(a)(3) of the T.R.C.P.

discovered that a Judgment dated December 5, 1997 had been placed in the court file on January 9, 1998.

[ Movant did not receive actual knowledge of the date and content of said Judgment until obtaining a copy from the Bexar County Court Records on the first day it was available there, January 9, 1998.

The motion recited that it was filed by "MORRIS J. KIRSCHBERG, MOVANT herein by and through his undersigned counsel." Attached to the motion were notarized statements in which Kirschberg and his attorney swore that all of the allegations in the motion were true and correct. The trial judge held an evidentiary hearing on Kirschberg's Rule 306a motion and concluded "they did not receive the notice until the 9th." However, despite Kirschberg's request, the trial judge never signed on order finding the date required by Rule 306a.

After this court received the clerk's record, it performed a jurisdiction check and discovered the clerk's record did not include an order on Kirschberg's Rule 306a motion. It also appeared Kirschberg's Rule 306a motion and amended motion were insufficient to invoke the trial court's Rule 306a jurisdiction. See In re Jones, 974 S.W.2d 766, 767 (Tex.App.--San Antonio 1998, orig. proceeding). We therefore issued an order requiring Kirschberg to explain why his appeal should not be dismissed for lack of jurisdiction.

In response to our order, Kirschberg filed a response explaining the events outlined above, attaching the reporter's record of the Rule 306a hearing, and requesting that we either rule that his motion for judgment non obstante veredicto extended the appellate timetable or find the substitute judgment date as January 9. Kirschberg also filed motions seeking leave to verify his initial Rule 306a motion and to permit the trial judge to sign a Rule 306a order. Rey filed a motion to dismiss the appeal because Kirschberg failed to comply with Rule 306a and an objection to Kirschberg's response to our show cause order.

DISCUSSION

Kirschberg was required to perfect his appeal within thirty days after December 5, 1997, the date the judgment was signed, unless he filed a motion that extended the appellate timetable under Rule 329b or established a later judgment date under Rule 306a. See TEX.R.APP. P. 4.2, 26.1. We must therefore decide whether Kirschberg's motion for judgment non obstante veredicto extended the appellate timetable and, if not, whether he established a new judgment date of January 9.

Rule 301 provides for a motion for judgment non obstante veredicto but neither that rule nor any other " 'provide[s] a time limit [for its] filing.' " Walker v. S & T Truck Lines, Inc., 409 S.W.2d 942, 943 (Tex.Civ.App.--Corpus Christi 1966, writ ref'd) (quoting Hann v. Life & Cas. Ins. Co. of Tenn., 312 S.W.2d 261, 263 (Tex.Civ.App.--San Antonio 1958, no writ)). Therefore, in Texas state courts, motions for judgment n.o.v. can properly be filed before or after judgment. Id.; see also Cleaver v. Dresser Indus., 570 S.W.2d 479, 483 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.); Needville Indep. Sch. Dist. v. S.P.J.S.T. Rest Home, 566 S.W.2d 40, 42 (Tex.Civ.App.--Beaumont 1978, no writ). Historically, however, while a motion for judgment n.o.v. could be filed before or after judgment and still preserve error, it did not extend the appellate timetable. Walker, 409 S.W.2d at 944-45; see TEX.R. CIV. P. 329b(5) (Vernon 1977). An extended timetable could be obtained only by a timely-filed motion for new trial. Id.

In 1981, however, the Supreme Court of Texas amended Rule 329b to provide for an extended appellate timetable if either a motion for a new trial or a "motion to vacate, modify, correct, or reform" a judgment was filed within thirty days of the date the judgment was signed. TEX.R. CIV. P. 329b(a), (e), (g); see Clarence A. Guittard, Other Significant Changes in the Appellate Rules, 12 ST. MARY'S L.J. 667, 669 (1981). By its express terms, the amended rule made no provision for a motion for judgment n.o.v. or a motion to disregard jury findings, see TEX.R. CIV. P. First Freeport filed a motion captioned "Motion to Disregard Special Issue Findings and a Motion to Modify and Enter Judgment" within thirty days after the date the trial court signed a judgment and then, believing this motion extended the appellate timetable, perfected its appeal in accordance with an extended appellate timetable. See id at 169. The Fourteenth Court of Appeals disagreed with First Freeport's construction of the rules and dismissed its appeal as untimely, holding that, because First Freeport's motion was, in substance, a motion for judgment notwithstanding the verdict, it did not extend the appellate timetable. Id. at 170. During the ensuing decade, the reasoning in First Freeport was soundly rejected, first by the Dallas Court of Appeals and then by each of the other courts of appeals considering the issue. ⁴ Ultimately, the Supreme Court of Texas resolved the conflict in Gomez v. Texas Dep 't of Criminal Justice, 896 S.W.2d 176, 176-77 (Tex.1995) (per curiam).

                329b, despite the similarities between these types of motions and a motion to modify. 2  Therefore, it appeared to many that these types of motions continued to be authorized and governed solely by Rule 301. 3  Perhaps not surprisingly, however, at least in retrospect, the similarities between motions to modify and motions for judgment n.o.v. and motions to disregard jury findings generated considerable confusion when viewed in light of the 1981 amendment providing that motions to modify extended the appellate timetable if they were filed within the time for filing a motion for new trial.  This confusion was first confronted in First Freeport Nat 'l Bank v. Brazoswood Nat 'l Bank, 712 S.W.2d 168, 170 (Tex.App.--Houston [14th Dist.] 1986, no writ)
                

In Gomez, the trial court signed a judgment dismissing Richard Gomez's case on July 5, 1994. Id. at 176. Within thirty days thereafter, Gomez filed a " 'bill of review,' which [he] subsequently asked the court to redesignate as a motion for new trial." Id. Gomez then perfected his appeal under the assumption that his "bill of review" extended the appellate timetable. See id. Without referring to Gomez's "bill of review" the court of appeals dismissed Gomez's appeal as untimely perfected. Id. The Supreme Court of Texas reversed:

The record indicates that Gomez's "bill of review" assailed the trial court's judgment. Consequently, the appellate timetable was extended from thirty days to ninety days from the date of the signing of the judgment on the...