McRoberts v. Ryals

• Decision Date: 30 June 1993
• Docket Number: No. D-0715,D-0715
• Citation: 863 S.W.2d 450
• Parties: Guy Wayne McROBERTS, Petitioner, v. Michael W. RYALS and Suzanne Hart, Respondents.
• Court: Texas Supreme Court

Page 450

863 S.W.2d 450

Guy Wayne McROBERTS, Petitioner, v. Michael W. RYALS and Suzanne Hart, Respondents.

No. D-0715.

Supreme Court of Texas.

June 30, 1993.

Rehearing Overruled Nov. 17, 1993.

Bob Roberts and Ted Applewhite, Austin, for petitioner.

Belinda A. Vrielink, Robert B. Wellenberger and Rhonda Johnson Byrd, Dallas, for respondents.

OPINION

GAMMAGE, Justice.

This appeal of a summary judgment in a bill of review case presents again the problem of the effect of severance orders on the filing deadlines necessary to preserve appeals. The trial court held McRoberts' first counsel was negligent as a matter of law when he believed that a judgment combined with a severance order was interlocutory after the court of appeals clerk advised him that the order was "clearly interlocutory with respect to the parent cause [and that] nothing in the record reflect[s] that any order at all has been entered in the severed cause." The court of appeals concluded McRoberts never had an appeal because his motion for new trial was submitted in the "parent cause" rather than the severed cause, even though the trial court clerk had neither assigned the new cause a number nor created a new file for the "severed" cause at the time the motion was due. 861 S.W.2d 253. We hold that the summary judgment evidence did not establish McRoberts' negligence as a matter of law. We reverse the judgments of the courts below and remand the cause to the trial court.

Guy Wayne McRoberts sued Michael W. Ryals, Suzanne Hart, Mazda Motor Corporation Transnational Motors, Inc., and the City of Dallas for personal injury from an automobile accident in 1985. McRoberts alleges that Ryals was driving while intoxicated going the wrong way on a one-way street when he struck McRoberts' automobile, causing McRoberts to become blind. He further alleges Hart, as Ryals' passenger, engaged in negligent conduct contributing to the collision. Other theories of liability were asserted against Mazda, Transnational and the City. The suit was assigned cause number 86-1630-M.

Counsel for McRoberts wrote a letter to counsel for Ryals and Hart, demanding insurance policy limits. The lawyers representing Ryals and Hart wrote back "accepting the offer of settlement," and stating that as soon as McRoberts signed the standard release he would receive a check for the policy limits, $15,000. The day after he received the "acceptance" letter, McRoberts' attorney wrote counsel for Ryals and Hart that "it is not possible for Mr. McRoberts to accept this settlement offer at this time."

With the first two letters as the only written "agreement," Ryals and Hart filed a motion to enforce the "settlement agreement." After hearing the motion as a summary judgment proceeding, on November 14, 1986, the district judge signed a judgment which recited that there had been a settlement between McRoberts and Ryals and Hart, and ordered that Ryals and Hart pay McRoberts $15,000, and that the claim against them be severed and dismissed.

On November 24, 1986, the judge signed an "Amended Judgment" granting substantially the same relief. The Amended Judgment added that it was based on "the evidence and the argument of counsel," not just on "the pleadings and the motion," as the first judgment had recited. The Amended Judgment recited "that the Plaintiffs' actions against Michael W. Ryals and Suzanne Hart be severed from the remaining cause of action pending in this case, and that Defendant Ryals' and Hart's Motion to Enforce Settlement Agreement is sustained."

On November 29, 1986, counsel for Ryals and Hart sent a letter to the district clerk asking that the severed action be given a new cause number, and included a docketing fee of $113. They mailed a copy of the letter to McRoberts' counsel. McRoberts filed a motion for new trial on December 10, 1986, to the Amended Judgment, showing the cause number 86-1630-M, and submitted it in that cause. This motion for new trial was overruled January 13, 1987.

On January 29, 1987, the district clerk finally opened a new file for the severed cause, and gave it the new cause number 87-1261-M. The clerk did not send notice to the parties of the number or the creation of a new file for the severed cause. On February 11, 1987, McRoberts filed an appeal bond with the district court, still designating "86-1630-M" as the cause number.

On May 7, 1987, the court of appeals clerk wrote counsel for McRoberts a letter stating:

The transcript now on file with this Court does not sufficiently reflect that this Court has jurisdiction over this cause. Specifically, there appears to be no final judgment. The Court recognizes that the November 24, 1985 amended judgment ordered a severance of its judgment disposing of certain claims, to achieve finality. The order of severance, however, appears to be filed in the parent cause, trial court number 86-1630-M, and, as such, is clearly interlocutory with respect to the parent cause. There is nothing in the record to reflect that any order at all has been entered in the severed cause, and it is only the severed cause from which an appeal appears now to be proper.

This appears to be a defect that is correctable. Therefore, pursuant to TEX.R.APP.P. 55(b), this Court directs you to file a supplemental transcript containing an order filed within the severed cause expressly disposing of the severed claims. No other documents may be included in the supplemental transcript without leave of the Court. The supplemental transcript should be filed by June 8, 1987 or else this cause may be dismissed for want of jurisdiction. This deadline cannot be extended without a formal motion to extend.

McRoberts' counsel concluded from this letter that the judgment rendered against Ryals and Hart was interlocutory, which meant that the trial court still had jurisdiction to modify or withdraw it. He requested the trial court to reconsider the judgment. Ryals and Hart resisted his trial court motion on the grounds that the trial court had lost plenary jurisdiction over the severed cause. On June 9, 1987, the new presiding judge ordered the prior judgments vacated. The next day McRoberts moved to dismiss the pending appeal. The court of appeals granted the motion.

Ryals and Hart filed a motion for leave to file petition for writ of mandamus in the court of appeals. They alleged the trial court had lost plenary jurisdiction to set aside its order granting summary judgment and severance. The court of appeals agreed, and granted relief vacating the new orders and in effect reinstating the original summary judgment and severance. Ryals v. Canales, 748 S.W.2d 601 (Tex.App.--Dallas 1988, orig. proceeding [leave denied] ).

McRoberts then filed this bill of review. He alleged he was deprived of his right of appeal by (1) the district clerk's delay in assigning a new file number, and the clerk's failure to advise the parties when this was finally done; (2) the confusion caused by the letter from the clerk of the court of appeals; and (3) "fraud" of the opposing parties in failing to tell McRoberts of the new cause number, in filing photocopies of the judgment in the severed cause, and in continuing to participate in the parent cause with knowledge they were no longer parties to it.

Ryals and Hart sought summary judgment that neither their counsel nor the district clerk had any duty to inform McRoberts of the new docket number, and that the judgment became final because of his own failure to insure that he was appealing in the correct cause. Ryals and Hart also contended that the letter from the court of appeals clerk was accurate. They urged that McRoberts lost his right to appeal because his own counsel was negligent. They also contended he was not likely to prevail on appeal. Their supporting summary judgment evidence consisted largely of documents from the respective trial court and court of appeals records.

McRoberts opposed the motion for summary judgment with supporting affidavits, including one from his former counsel which tended to prove the allegations of his pleading. ¹ The trial court granted summary judgment for Ryals and Hart, denying the bill of review on the stated grounds that the loss of McRoberts' right to appeal resulted from his own counsel's negligence as set forth in "Ground C" ² of the motion. The court of appeals affirmed on the somewhat different basis that McRoberts never filed a timely and effective appeal because the motion for rehearing and appeal bond were filed under the wrong cause number. 861 S.W.2d 253.

The letter from the clerk of the court of appeals assumed there had to be a "severed" cause number assigned, and a separate physical file, before the severance order was effective. However, an order granting a severance with a judgment in the cause ordered severed is effective when signed. ³ Hall v. City of Austin, 450 S.W.2d 836, 838 (Tex.1970); Richards v. Allen, 402 S.W.2d 158, 160 (Tex.1966); Pan American Petroleum Corp. v. Texas Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959). It became effective without the district clerk's creation of a separate physical file with a different cause number. ⁴ Thus, the clerk's letter was at least misleading.

The court of appeals, through its clerk, had the right to direct clarifications of the record. But in his official capacity announcing a directive of the court, the clerk provided a misleading statement of law, reliance on which for summary judgment purposes will not be treated as negligence as a matter of law. See generally Petro-Chemical Transp., Inc. v. Carroll, 514 S.W.2d 240, 246 (Tex.1974). The attorney's conduct in securing the trial judge's order setting aside the judgment and severance, and in relying on that order, does not establish as a matter of law that the attorney was negligent.

Since this is a summary judgment proceeding, respondents had to negate as a matter of law one of the bill of review elements of petitioner's cause of...