Miles v. Ford Motor Co.

• Decision Date: 22 December 1995
• Docket Number: No. 95-9198,95-9198
• Citation: 39 Tex.Sup.Ct.J. 173,914 S.W.2d 135
• Parties: 39 Tex. Sup. Ct. J. 173 Susan Renae MILES, Individually and as Next Friend of Willie Searcy and Jermaine Searcy, Minors and Kenneth Miles, Appellants, v. FORD MOTOR COMPANY and Douglas Stanley, Jr. d/b/a Doug Stanley Ford, Appellees.
• Court: Texas Supreme Court

Page 135

914 S.W.2d 135

39 Tex. Sup. Ct. J. 173

Susan Renae MILES, Individually and as Next Friend of Willie Searcy and Jermaine Searcy, Minors and Kenneth Miles, Appellants, v. FORD MOTOR COMPANY and Douglas Stanley, Jr. d/b/a Doug Stanley Ford, Appellees.

No. 95-9198.

Supreme Court of Texas.

Dec. 22, 1995.

PER CURIAM.

The motion for rehearing of Ford Motor Company is overruled. The following opinion is substituted for the Court's September 14, 1995, per curiam opinion.

Judgments rendered by the Fourth Judicial District Court in Rusk County may be appealed to either the Sixth Court of Appeals in Texarkana or the Twelfth Court of Appeals in Tyler. See Tex. Gov't Code § 22.201(g), (m). Plaintiffs appealed a judgment from the Fourth Judicial District to the Sixth Court of Appeals, while defendant appealed the same judgment to the Twelfth Court of Appeals. In this administrative proceeding, defendant requests that we consolidate both appeals in the Twelfth Court of Appeals by transferring plaintiffs' appeal to that court. Because plaintiffs' appeal was the first to be perfected, we deny the motion to transfer.

Willie Searcy suffered severe and permanent injury from a collision while riding as a passenger in a Ford vehicle. Willie's family sued Ford Motor Company ("Ford") and Doug Stanley Ford ("Stanley"), the seller of the vehicle, in Rusk County, claiming product defect. Willie's mother asserted claims individually and as next friend of Willie, while Willie's brother and step-father asserted claims for loss of consortium. In January 1995, the trial court granted summary judgment for the defendants on the brother's and step-father's consortium claims. Plaintiffs immediately attempted to perfect an appeal from the summary judgment to the Sixth Court of Appeals, but the consortium claims had not been severed from the other portions of the case, and plaintiffs do not dispute that their appeal was premature. There is no indication in the record before us, however, that Ford moved to dismiss the premature appeal, or that the court of appeals took any action prior to the plaintiffs' filing of a timely appeal bond from the subsequent final judgment, as discussed below.

At trial, the jury found against Ford on all remaining claims, while returning findings exonerating Stanley from liability. The trial court rendered judgment against Ford on the verdict, signing a judgment on March 9, 1995, awarding actual damages of $27.8 million and punitive damages of $10 million. Later that same day, plaintiffs perfected an appeal to the Sixth Court of Appeals, challenging the trial court's summary judgment for Ford on the consortium claims and the take-nothing judgment on the jury's verdict for Stanley. ¹

On March 29, 1995, Ford perfected a separate appeal to the Twelfth Court of Appeals. Plaintiffs moved to dismiss this appeal, contending that the court at Texarkana had already acquired dominant jurisdiction over the entire appeal. That motion to dismiss is apparently still pending.

Ford subsequently filed a motion in the Sixth Court of Appeals to transfer plaintiffs' appeal to the Twelfth Court of Appeals. After notifying the parties that it had no statutory authority to transfer appeals, the Sixth Court forwarded Ford's motion to this Court, together with a letter indicating that it had no objection to the transfer. ² The Sixth Court has abated the appeal pending our consideration of the motion to transfer.

Only the Supreme Court is authorized to transfer appellate cases. The statute provides:

The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer.

Tex. Gov't Code § 73.001. Although we typically exercise this authority to equalize the dockets of the courts of appeals, section 73.001 does not limit our transfer authority to that purpose. Under the jurisdictional scheme set out in the Government Code, the Sixth and Twelfth appellate districts overlap in six counties, including Rusk County. Tex. Gov't Code § 22.201(g), (m). ³ The statute does not specify any procedure for allocating appeals from these counties between the two appellate courts, and thus appellants are free to elect either appellate route. ⁴ The parties do not dispute, however, that all challenges to the trial court's judgment should be heard together in one appellate proceeding. We must decide which court should retain jurisdiction under the circumstances of this case.

Ford contends that good cause exists to transfer the plaintiffs' appeal to defendant's chosen venue under section 73.001 because Ford's appeal is "primary." That is, Ford is appealing a judgment against it in excess of $37 million, while plaintiffs are appealing loss of consortium claims which, according to Ford, are worth at most a small percentage of that amount. Plaintiffs' other appellate complaint, Ford contends, could at best result in the extension of liability to another party, Stanley, but could not increase the damage award. See generally Duncan v. Cessna, 665 S.W.2d 414, 432 (Tex.1984).

Plaintiffs, on the other hand, respond simply that their venue selection should control because they were the first to perfect an appeal. We agree. The general common law rule in Texas is that "the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts." Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974); Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581, 586 (Tex.1993); Mower v. Boyer, 811 S.W.2d 560, 563 n. 2 (Tex.1991). This rule is grounded on the principles of comity, convenience, and the need for an orderly procedure in resolving jurisdictional disputes. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988).

Although the rule of dominant jurisdiction has most often been applied at the trial court level, the rationale underlying the rule also applies to appeals in those instances where the Legislature has not otherwise provided an allocation mechanism. Once the first appeal is perfected, the court of appeals acquires jurisdiction over the entire controversy. See Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 482 (Tex.1964). We have recognized that a court of appeals "will not be permitted to interfere with the previously attached jurisdiction of another court of co-ordinate power." Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 645 (1933). In Ward v. Scarborough, 236 S.W. 441 (Tex. Comm'n App.1922, judgm't adopted), the court applied an analogous rule to uphold the court of appeals' dismissal of a writ of error appeal that had been filed after the opposing party had perfected an ordinary appeal from the same judgment. Even though the writ of error and ordinary appeal were both proper methods of challenging the judgment, and the appellant's writ of error raised different complaints from those raised in the ordinary appeal, the court concluded that the first to be filed should control:

The right of the Scarboroughs and Ward, respectively, to select the proceeding by which the case should be carried to the Court of Civil Appeals for review was equal. Either had a right to invoke the speedier process of appeal, and, when so invoked, the other had no right to complain. Either had the right, the other remaining inactive, to adopt the slower process by writ of error. Their rights being equal, priority in making the election and acting thereon should prevail.

236 S.W. at 444.

In the trial court context, we have recognized three exceptions to the rule of dominant jurisdiction: 1) where a party has engaged in inequitable conduct that estops him or her from asserting prior active jurisdiction; 2) where there is a lack of persons to be joined if feasible, or the power to bring them before the court; and 3) where there is a lack of intent to prosecute the first proceeding. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988). Ford argues that the third exception should apply here. It contends that plaintiffs filed their appeal as a pretext merely to establish venue in the Sixth Court of Appeals. Plaintiffs, however, have timely perfected their appeal, and there is no evidence that they do not intend to prosecute their appeal. Although plaintiffs prevailed on their most significant claims, they nonetheless have the right to appeal those matters on which they did not prevail. As noted in Wood, where the parties have an equal right of appeal, "priority in making the election and acting thereon should prevail." 236 S.W. at 444.

In the trial court context, we have at times indicated that the second-filed suit should be dismissed, see Mower v. Boyer, 811 S.W.2d 560, 563 n. 2 (Tex.1991); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926), while on at least one occasion we have indicated that it should merely be abated pending disposition of the first suit. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988). In the appellate context, we believe abatement is the more appropriate remedy. This will protect the second appellant's right to proceed in its chosen forum if at any time it becomes apparent that the appellant filed the first appeal merely as a sham, with no intent to prosecute the appeal. If for some reason the second appellant desires a transfer to protect a point of error that was not properly raised as a cross-point in the first appeal, the second appellant may make an appropriate motion to this Court.

Ford further argues that the common-law rule of dominant jurisdiction must yield to section 73.001, which vests this Court with statutory authority to transfer cases for good cause. We conclude, however, that in determining whether good cause exists...