McCall v. Tana Oil and Gas Corp.
| Decision Date | 26 July 2001 |
| Docket Number | No. 03-00-00347-CV.,03-00-00347-CV. |
| Citation | 82 S.W.3d 337 |
| Parties | Tom C. McCALL and David B. McCall, Appellants, v. TANA OIL AND GAS CORPORATION and Robert B. Bowling, Appellees. |
| Court | Texas Court of Appeals |
Tom C. McCall, McCall & Ritche, L.L.P., Austin, for appellants.
Roberta S. Dohse, R. Clay Hoblit, Chaves, Gonzales & Hoblit, L.L.P., Corpus Christi, for appellees.
Before Justices KIDD, YEAKEL and POWERS.*
Tom C. McCall and David B. McCall (the "McCalls") appeal from a judgment that they take nothing by their claims against Tana Oil and Gas Corporation and Robert B. Rowling ("appellees"). We will affirm the judgment in part and reverse in another part, remanding to the trial court the part reversed.
John Niemeyer retained the McCalls to represent him in litigation with Tana Oil and Gas Corporation. In Niemeyer's behalf, the McCalls sued the corporation on October 19, 1995, in the Fayette County district court, to recover mineral royalties allegedly owed Niemeyer.1 Very soon thereafter, appellees alleged various causes of action in a suit against the McCalls, Niemeyer, and other members of the Niemeyer family, filed November 2, 1995, in a district court of Nueces County. On April 22, 1998, in an original mandamus action brought by the McCalls, the Thirteenth Court of Appeals ordered abatement of the Nueces County suit, but not before the McCalls had incurred substantial attorneys' fees defending against appellees' Nueces County suit. See In re McCall, 967 S.W.2d 934 (Tex.App. — Corpus Christi 1998, orig. proceeding).
The McCalls thereafter sued appellees in a Travis County district court alleging appellees' Nueces County suit was groundless and maliciously conducted for the express purpose of disrupting the Fayette County litigation by interfering with the McCalls' representation of Niemeyer. Upon such allegations, the McCalls founded the following causes of action: tortious interference with the McCall-Niemeyer contract; abuse of process; and malicious prosecution of a civil proceeding. The trial court appears to have decided each cause of action adversely to the McCalls as a matter of law, which the McCalls claim was reversible error in each instance. Before we turn to those matters, however, we vdll upon our own motion inquire whether the judgment is not within our power to review because it fails to adjudicate all three causes of action brought by the McCalls. See K & S Interests, Inc. v. Texas Am. Bank/Dallas, 749 S.W.2d 887, 891 (Tex.App. — Dallas 1988, writ denied).
Abuse of Process. The McCalls' action for abuse of process was decided adversely to them on appellees' motion for summary judgment, as stated expressly in an interlocutory order signed by the trial judge on May 10, 2000.
Tortious Interference. The McCalls' action for tortious interference with the McCall Niemeyer contract was determined adversely to the McCalls, as a matter of law, in response to appellees' motion for directed verdict.
Malicious Prosecution, While the trialcourt rulings on the two foregoing actions were expressly made a part of the judgment instrument quoted at length below, the McCalls' action for malicious prosecution is not mentioned expressly in that instrument and is not the subject of any interlocutory trial-court order.
It appears from the record that another trial judge heard appellees' motion for summary judgment directed at the McCalls' malicious-prosecution claim. That judge evidently sent to counsel of record a "letter ruling" dated December 9, 1999. Therein, the judge stated appellees' motion was "granted" as to the McCalls' malicious-prosecution claim and directed appellees to "submit an appropriate order." No such interlocutory order appears in the clerk's record; indeed, the "letter ruling" is before us solely in the form of a copy attached to each party's brief in this Court. The copy does not bear the district clerk's file mark and nothing in the record suggests the letter was filed with the district clerk.2 We therefore conclude that the record fails to show that appellees' motion for summary judgment as to the malicious-prosecution claim was adjudicated before the case was called for trial on May 8, 2000. See Goff v. Tuchscherer, 627 S.W.2d 397, 398-99 (Tex.1982); In re Fuentes, 960 S.W.2d 261, 264-65 (Tex. App. — Corpus Christi 1997, orig. proceeding); Mays v. Foremost Ins. Co., 627 S.W.2d 230, 231-32 (Tex.App. — San Antonio 1981, no writ).
On May 15, 2000, the trial judge signed an "Amended Final Judgment Based Upon Directed Verdict." The instrument recites as follows:
Be it remembered that, on the 8th day of May, 2000, the above-entitled and numbered cause was regularly reached and called for trial, and came the parties to said cause, in person and by counsel, and announced themselves ready for trial. Whereupon came a jury of twelve (12) good and lawful men and women, who were duly impaneled and sworn by the Court and ... thereupon said cause proceeded to trial before said Court and jury.
The Court, having entered [sic] an order granting [appellees'] Motion for Summary Judgment on Abuse of Process, and having entered an order granting [appellees'] Motion for Directed Verdict on Claim for Tortious Interference, and there being no remaining live claims, dismissed the jury.
It is, therefore, ordered, adjudged and decreed, by the Court that Directed Verdict and Final Judgment in favor of [appellees] should be entered and that [the McCalls] take nothing against [appellees]. It is further ordered by the Court that all costs of this suit be and the same are hereby adjudged against the [McCalls], and that [appellees] shall recover such costs from [the McCalls], for which execution shall issue if not timely paid.
It is further ordered that all relief not expressly granted herein is denied.
Is the foregoing a final judgment for purposes of appeal even though it does not adjudicate expressly the McCalls' malicious-prosecution action?
When a judgment not intrinsically interlocutory in character is rendered and entered in a case regularly set for a conventional trial on the merits ... it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and all issues made by the pleadings between such parties.
North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.1966). That
the instrument signed May 15, 2000, was intended to be a final judgment is indicated by the recitals contained therein to the effect that the case was set and called for trial before a jury and the cause proceeded to trial; the decree that the McCalls take nothing as against appellees; the declaration that all relief not granted expressly is denied; and the recital that the jury were dismissed because, in effect, all the McCalls' claims had been decided against them on questions of law, leaving nothing for the jury to determine.
The effect of the instrument signed May 15, 2000, is to dispose of the McCalls' malicious-prosecution claim by necessary implication and as a matter of law. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex.1995); North East Indep. Sch. Dist., 400 S.W.2d at 895; Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945, 947 (1960); Hargrove v. Insurance Inv. Corp., 142 Tex. 111, 176 S.W.2d 744, 746 (1944); Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161, 1162 (1913). Whether the disposition was by way of ruling as a matter of law on appellees' unresolved motion for summary judgment (which remained pending for want of an interlocutory order) or by way of the trial judge's power to withdraw an issue from the jury, as discussed in footnote four infra, the result is the same.
We hold accordingly that the judgment instrument signed May 15, 2000, resolved all issues between the parties and it is, therefore, a final judgment for purposes of appeal.
In answer to the McCalls' tortious-interference claim, appellees interposed the affirmative defense of legal justification and a plea that the damages sought to be recovered for the alleged interference consisted solely of attorneys' fees, which are not recoverable as a matter of law because not authorized by contract or statute.3 It appears to be undisputed that attorneys' fees incurred by the McCalls in defending the Nueces County suit are the principal injury for which they seek damages in their tortious-interference action.
After the jury were impaneled, but before any evidence was adduced, the trial judge sustained appellees' motion for directed verdict challenging the McCalls' tortious-interference claim. A directed verdict is ordinarily made, at the earliest, when the plaintiff rests. See 4 McDonald, Texas Civil Practice § 24:49, at 129-30 (1992). Directed verdicts have also been sustained, however, where the substantive law did not as a matter of law permit a plaintiff to recover on his pleaded cause of action. See, e.g., Anderson v. Vinson Exploration, Inc., 832 S.W.2d 657, 665 (Tex. App. — El Paso 1992, writ denied) (); Dillard v. Broyles, 633 S.W.2d 636, 644 (Tex.App. — Corpus Christi 1982, writ ref'd n.r.e.) (). Under this theory, the timing of a directed verdict would appear to be immaterial. It is on this basis that we discuss appellees' contention that the McCalls could not as a matter of law prevail on their tortious-interference claim.
The judgment, signed May 15, 2000, determines as a matter of law that the McCalls cannot recover on their tortious-interference claim for three stated reasons: (1) attorneys' fees as damages are not recoverable absent a contract or statute providing therefor; ...
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