Mays v. Perkins, 01-95-01395-CV

• Decision Date: 11 July 1996
• Docket Number: No. 01-95-01395-CV,01-95-01395-CV
• Citation: 927 S.W.2d 222
• Parties: Alfred MAYS and Willie Lee Marshall, Appellants, v. Vernon A. PERKINS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 222

927 S.W.2d 222

Alfred MAYS and Willie Lee Marshall, Appellants, v. Vernon A. PERKINS, Appellee.

No. 01-95-01395-CV.

Court of Appeals of Texas Houston (1st Dist.).

July 11, 1996.

Carlos A. Peniche, Houston, for Appellants.

Walter F. Williams, III, Diane M. Gauriglia, Houston, for Appellee.

Before HUTSON-DUNN, MIRABAL and HEDGES, JJ.

OPINION

HUTSON-DUNN, Justice.

Appellants, Alfred Mays and Willie Lee Marshall, appeal by writ of error the granting of a final judgment in favor of appellee, Vernon Perkins. We reverse.

The underlying suit to this appeal involved an automobile accident. The plaintiffs, Rodney James, Sr., and Rodney James, Jr. (plaintiffs), sued Vernon Perkins, Mays and Marshall for damages. Mays and Marshall filed their answers through their attorney, Randall Owens. On July 26, 1994, plaintiffs amended their petition dropping Mays as a named defendant but maintaining allegations of negligent entrustment against him in the body of the petition. On October 5, 1994, plaintiffs filed a second amended petition that dropped all allegations of negligence against Mays.

On December 6, 1994, Marshall filed a cross-claim against Perkins, to which Mays was also a named plaintiff, for personal injuries and property damage arising from the same automobile accident made the basis of the original lawsuit. This cross-claim was filed by Mark Wottlin, Marshall's and Mays' attorney of record for this cross-claim only.

On April 5, 1995, a motion for a minor settlement hearing to be heard on April 25, 1995, was filed on behalf of Rodney James, Jr., by his attorney, Gary Block, as ad litem for the minor. On April 25, 1995, an agreed judgment was entered into and signed by Randall Owens as attorney for defendants, Marshall and Mays; Walter Williams as attorney for the defendant Perkins; Gary Block as Guardian Ad Litem for Rodney James, Jr.; and by Brady King as attorney for Rodney James, Sr. Nowhere on the face of the agreed judgment does it reference the cross-claim by Marshall and Mays, nor was their attorney, Mark Wottlin, a signer to the agreed judgment. The agreed judgment, in addition to disposing of all plaintiff's claims, also stated that "all claims and causes of action that were, or could have been, brought in this proceeding against the defendants, Willie Lee Marshall, Alfred Mays, and Vernon A. Perkins, are dismissed with prejudice."

On May 19, 1995, Mark Wottlin, on behalf of Mays and Marshall, filed a motion for judgment nunc pro tunc, or alternatively a motion for new trial. In the motion, they alleged, respectively, that the judgment contained a clerical error in that it disposed of a cross-claim of which none of the parties were aware, and that Wottlin did not appear at the hearing because he thought it was for the exclusive purpose of entering an interlocutory judgment for the benefit of Rodney James, Jr.

The record next reflects that on September 8, 1995, Bob Corvo, Marshall's and Mays' new attorney, requested that the case be set for trial. That same day, the trial court set the case for trial on April 24, 1996. On September 21, 1995, the trial court sent Wottlin a notice of intent to dismiss for want of prosecution, giving Wottlin until November 3, 1995, to set Marshall's and Mays' claims against Perkins for trial. On October 18, 1995, the trial court heard Marshall's and Mays' motion for judgment nunc pro tunc, which it denied. The trial court stamped the agreed judgment as "closed," and treated the agreed judgment as final.

Marshall and Mays now appeal by writ of error, alleging in their sole point of error that the trial court erred in finding the agreed judgment of April 25, 1995, had become a final judgment. To be entitled to appeal by writ of error to the court of appeals, the party seeking relief must show (1) the appeal was perfected within six months of the date of the judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) there is error apparent on the face of the record. Havens v. Ayers, 886 S.W.2d 506, 508 (Tex.App.--Houston [1st Dist.] 1994, no writ). In this case, the judgment was signed on April 25, 1995, and the writ of error was perfected on October 25, 1995. Appellee contests whether Mays and/or Marshall were parties to the suit who did not participate in trial, as well as whether there is error apparent on the face of the record.

First, Perkins argues Mays was not a party to the suit, so he is not entitled to review by writ of error. Specifically, Perkins argues that because Mays was dismissed before the cross-action was filed, Mays was not a proper cross-plaintiff or intervening party to the suit. It is well established that an amended petition that omits a defendant operates as a voluntary dismissal as to that defendant. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex.1972); Ludwig v. Enserch Corp., 845 S.W.2d 338, 339 (Tex.App.--Houston [1st Dist.] 1992, no writ). Under the applicable case law, Mays was dismissed from the suit at the time of the plaintiff's second amended petition. However, even though Mays was dismissed under the second amended petition, Mays' attorney, Owens, signed the judgment in his representative capacity for Mays, and in the judgment itself, fines were charged against Mays as a part of the judgment. Therefore, despite the dismissal, we must determine whether Mays resubmitted himself to the jurisdiction of the court by appearing through counsel and participating in the agreed final judgment.

A defendant's appearance before a court generally indicates a submission to the court's jurisdiction. TEX.R.CIV.P. 120. However, the mere presence in court by an attorney, retained as counsel by a person formerly a party to the lawsuit, does not constitute a general appearance, unless the attorney seeks a judgment or an adjudication on some question. TEX.R.CIV.P. 120; CIGNA Ins. Co. & INAC v. TPG Store, Inc., 894 S.W.2d 431, 434 (Tex.App.--Austin 1995, no writ); Strawder v. Thomas, 846 S.W.2d 51, 61 (Tex.App.--Corpus Christi 1992, no writ). In our case, Owens appeared for the agreed final judgment and signed in his representative capacity for Mays. Therefore, we find that Mays reavailed himself of the jurisdiction of the court and was in fact a party to the suit at the time of the disposition of the agreed final judgment.

Second, Perkins argues that Marshall participated in the trial court proceedings, and therefore they are not entitled to appeal by writ of error. ¹ Specifically, Perkins argues that when a party participates in approving the final order in a case, this constitutes "participation" in the trial. See Stubbs v. Stubbs, 685 S.W.2d 643, 644-45 (Tex.1985); North v. Lawrence, 841 S.W.2d 540, 541 (Tex.App.--Houston [1st Dist.] 1992, no writ); Blankinship v. Blankinship, 572 S.W.2d, 807, 808(Tex.Civ.App.--Houston [14th Dist.] 1978, no writ). Perkins argues we should not consider Marshall's and Mays' review by writ of error on the ground that their attorney participated in and approved the terms of the agreed final judgment. Marshall and Mays do not dispute their participation insofar as the plaintiffs disposed of their claims against them. However, they argue that they received no notice of a hearing to dispose of their cross-claims against Perkins. Further, their attorney, Wottlin, was not present at the settlement hearing to confer in disposing of their cross-claim.

The Texas Supreme Court has defined "actual trial" as ordinarily understood to be the hearing in open court, leading up to the rendition of judgment, on questions of law, if the case is disposed of on the questions of law, or on the questions of fact, if the final judgment is rendered on the facts. Stubbs, 685 S.W.2d at 644-45 (quoting Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097 (1941)). However, the supreme court's definition of participation in the actual trial of the case, despite its apparent clarity, has not furnished a definitive guide. This is because trial courts decide cases in a wide variety of procedural contexts. ² The question becomes more difficult when a party participates in some but not all of the proceedings at trial.

The issue presented to us by this case is whether participation in the disposition of the plaintiff's claims necessarily constitutes participation in the disposition of the cross-claims as well. The Texas Supreme Court recently addressed an identical issue in Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586 (1996); see also Withem v. Underwood, 922 S.W.2d 956 (Tex.1996) (holding Withem did not participate in trial on damages where he filed an answer, had his pleadings struck and summary judgment rendered against him on the issue of liability, but did not attend trial on damages). In the Texaco case, the plaintiff brought suit against Texaco and Central Power & Light Company (CPL). Texaco, 925 S.W.2d at 587. CPL filed a cross-claim against Texaco alleging it was entitled to full indemnification pursuant to the Public Utility Commission tariff. Id. At trial, Texaco appeared and announced "ready" for trial of both plaintiffs' claims and CPL's counterclaim. Id. at 587. During trial, Texaco announced the terms of its settlement with the plaintiffs; it later received notification of CPL's motion to take judicial notice of the tariff. Id. After settling the plaintiffs' cause of action, Texaco was aware that its only remaining exposure involved the cross-action. Id. at 656. Based on the fact that Texaco had been made fully aware of the motion to take judicial notice of the tariff, but did not respond, the trial court rendered judgment against Texaco on CPL's cross-claim. Id.

The San Antonio Court of Appeals dismissed Texaco's appeal by writ of error. Texaco, Inc. v. Central Power & Light Co., 897 S.W.2d 854, 862-63 (Tex.App.--San Antonio 1995). That court held Texaco had "participated" in the trial because the parties announced "ready for trial" on plaintiff's claims and CPL's...