Mays v. Foremost Ins. Co.

• Decision Date: 30 December 1981
• Docket Number: No. 16661,16661
• Citation: 627 S.W.2d 230
• Parties: Rick MAYS, et vir, Appellants, v. FOREMOST INSURANCE COMPANY, et al., Appellees.
• Court: Texas Court of Appeals

Page 230

627 S.W.2d 230

Rick MAYS, et vir, Appellants, v. FOREMOST INSURANCE COMPANY, et al., Appellees.

No. 16661.

Court of Appeals of Texas, San Antonio.

Dec. 30, 1981.

Veitch & Britt, Inc., John Britt, San Antonio, for appellants.

Dale Felton, Houston, Robert McGowen, Devine, Jack Sides, Jr., Dallas, Robert Biechlin, San Antonio, for appellees.

OPINION

Before KLINGEMAN, CLARK, and BASKIN, JJ.

CLARK, Justice.

This is an appeal from an order granting the motions for summary judgment of appellees Mobile Home Brokers, Inc., d/b/a Crestview Mobile Housing and Foremost Insurance Company. ¹ Appellants' mobile home allegedly sustained water damages from leaky plumbing while they were away on vacation. Their pleadings charged Crestview with negligent plumbing repairs, breach of warranty, and violations of consumer protection statutes. Appellants charged Foremost with breach of contract, alleging a refusal by Foremost to reimburse them for their loss under an insurance policy on the mobile home.

Foremost has moved to dismiss this appeal for want of jurisdiction, asserting that appellants failed to file their cost bond and transcript within the times required by Tex.R.Civ.P. 356 & 386 (Vernon 1967). ² At the time this appeal was perfected Rule 356 required that appellants' cost bond be filed "within thirty days after rendition of judgment," and Rule 386 required that the transcript be filed "within sixty days from the rendition of the final judgment."

An order granting the motions for summary judgment was signed by the trial judge on August 12, 1980, and appellants filed their cost bond and transcript on September 4, 1980, and October 9, 1980, respectively. Foremost contends, however, that a letter written by the trial judge to all counsel on July 15, 1980, ³ and filed with the district clerk on July 17, 1980, constituted the "rendition" of judgment within the meaning of Rules 356 and 386 and that the order of August 12, 1980, was a nullity. Foremost argues that the trial judge's letter started the appellate clock on July 17, 1980, at the latest, and that this appeal must be dismissed for want of jurisdiction because the cost bond and transcript were not filed within thirty and sixty days, respectively, after that date. If Foremost is correct in its contention that the times provided in Rules 356 and 386 must be measured from the date of the letter, or the date of its filing, then appellants' cost bond was indeed filed late, and this appeal must be dismissed.

The question, then, is when the judgment was "rendered." The answer requires consideration of Rules 305 and 306a as well as Rules 356 and 386. Rule 305 provides that "(c)ounsel of the party for whom a judgment is rendered shall prepare the form of the judgment to be entered and submitted to the court." Rule 306a exhorts judges, attorneys and clerks to "cause all judgments and orders of any kind to be reduced to writing and signed by the trial judge," with "the date of signing stated therein." Rule 306a also makes it clear that the date the judgment is signed marks the beginning of the appellate countdown.

In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein. This rule shall apply in determining the time within which to file a(n) ... appeal bond or ... transcript in appellate court ....

Tex.R.Civ.P. 306a (Vernon 1967).

We reject Foremost's contention that the trial judge's letter of July 15, 1980, marked the beginning of the periods prescribed for the filing of appellants' cost bond and transcript. The letter plainly invited counsel for the various parties to do the very things contemplated by Rules 305 and 306a in order to reduce the trial judge's announced decision to a comprehensive judgment in appealable form. The order subsequently signed by the trial judge was comprehensive and complete. Besides granting the three defendants' respective motions for summary judgment, it also disposed of cross-actions, severed Foremost's counterclaim against appellants and retained it on the trial court's docket, and adjudged costs. The order reflected expressly that it was signed August 12, 1980.

The date of signing of the judgment determines the time limits for perfection of appeal if the date of signing is shown therein. Tex.R.Civ.P. 306a (Vernon 1967); Burrell v. Cornelius, 570 S.W.2d 382 (Tex.1978); Ortiz v. Beck, 611 S.W.2d 860 (Tex.Civ.App.-Corpus Christi 1980); Cyrus v. State, 601 S.W.2d 776 (Tex.Civ.App.-Dallas 1980, writ ref'd n. r. e.); Polis v. Alford, 267 S.W.2d 918 (Tex.Civ.App.-San Antonio 1954, no writ). See also Walker v. Harrison, 597 S.W.2d 913, 916 (Tex.1980).

Foremost relies strongly upon Goff v. Tuchscherer, 614 S.W.2d 934 (Tex.Civ.App.-Corpus Christi, 1981) in support of its argument that the trial judge's letter to counsel marked the beginning of the time periods prescribed in Rules 356 and 386. In Goff, as in the case before us, the trial judge announced his decision in a letter to the parties and subsequently signed an order to the same effect. Without referring to Rule 306a, the court held that the trial judge's letter constituted the "rendition" of judgment and triggered the beginning of the appellate time periods. The letter was brief, simply stating that the plea of privilege was overruled and requesting the preparation of an order reflecting the court's ruling.

We decline to apply the holding in Goff to the facts before us. To hold that the trial judge's letter to counsel in this case commenced the jurisdictional period for perfecting an appeal would be to countenance an enormous pitfall for the unwary, if not for the wary as well. We conclude that the trial judge's letter was exactly what it purported to be, and no more; i.e., an announcement to counsel of the action the court had decided to take on the motions for summary judgment, and a request that counsel for the prevailing parties prepare, pursuant to the express provisions of Rules 305 and 306a, a "written draft" of the "form of the judgment" to be "signed by the trial judge," after which the date of signing "as stated therein" would determine "the periods within which the various steps of an appeal must be taken." The resulting order of August 12, 1980, began the appellate time periods, and appellants' cost bond and transcript were thus timely filed.

The motion of Foremost to dismiss the appeal for want of jurisdiction is overruled.

Next we turn to the summary judgment granted in favor of Foremost. In its motion for summary judgment Foremost took the position that the limit of its contractual liability to appellants was fixed by carrying out the appraisal procedures specified by the insurance policy for resolving disputes between insurer and insured, which involved the appointment by each party of a competent, disinterested appraiser. The two appraisers were to select a mutually agreeable umpire if necessary to resolve differences between them; and failing agreement on an umpire, provision was made for the judicial appointment of an umpire. Foremost's motion was supported by affidavits of the court-appointed umpire, as to his determination of the amount of appellants' damages, and Foremost's claims supervisor, as to the tender of a draft for $823.93 to appellants' attorneys in payment of the appraised damages ($923.93) less the policy deductible amount ($100.00).

Appellants' opposition to Foremost's motion was supported by affidavits of the appellants, the appraiser appointed by them, and their attorney.

Under Tex.R.Civ.P. 166-A, the moving party has the burden of establishing that there exists no material fact issue and that he is entitled to judgment as a matter of law. "When a defendant moves for summary judgment on the basis of his affirmative defense, he must, therefore, conclusively prove all essential elements of that defense." Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972).

Foremost contends that appellants' cause of action is conclusively defeated by summary judgment proof that the appraisal provisions of the insurance policy were fully complied with by it, and that it has tendered to appellants $823.93, the full amount of compensation they were entitled to receive. Appellants, on the other hand, contend the summary judgment proof reveals the existence of genuine issues of material fact with respect to whether the appraisal provisions of the policy were carried out in accordance with the contract.

We are required to view the summary judgment proof in the light most favorable to appellants and to resolve against Foremost any doubt as to the existence of a genuine issue of material fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

In his affidavit in support of the motion for summary...