Morgan v. Chandler
| Decision Date | 16 August 1995 |
| Docket Number | No. 07-94-0293-CV,07-94-0293-CV |
| Citation | 906 S.W.2d 584 |
| Parties | Sherry Renee MORGAN, Appellant, v. Pamela CHANDLER, M.D., John Crane, M.D., Kelly Wilson, M.D., Gaston Prieto, M.D., Amarillo Hospital District d/b/a Northwest Texas Hospital, and Texas Tech University Health Sciences Center, Appellees. |
| Court | Texas Court of Appeals |
William E. Kelly, III, Canyon, for appellant.
Thomas C. Riney, Tod Mayfield, Gibson, Ochsner & Adkins, Amarillo, Barbara L. Stroud, Assistant Attorney General, Austin, Ken Braxton, Jr., Kevin Williams, Lubbock, for appellees.
Before REYNOLDS, C.J., and DODSON and QUINN, JJ.
Appellant, Sherry Renee Morgan, filed this medical malpractice action against appellees, Pamela Chandler, M.D., John Crane, M.D., Kelly Wilson, M.D., Gaston Prieto, M.D. (collectively referred to as the physicians), Amarillo Hospital District d/b/a Northwest Texas Hospital (the Hospital), and Texas Tech University Health Sciences Center (the Center), seeking damages for medical care rendered to her in connection with the delivery of her still-born child. After finding that Morgan filed her petition on Sunday, February 13, 1994, the trial court dismissed the lawsuit. We affirm in part, and reverse and remand in part.
The undisputed facts show that Morgan's original petition was file-marked on Sunday, February 13, 1994. On March 4, 1994, and March 14, 1994, the Hospital and the Center respectively filed their original answers. Then, on March 21, 1994, the physicians filed a motion to dismiss, arguing that Morgan's petition was void because it was filed on a Sunday in contravention of Texas Rule of Civil Procedure 6. 1 The trial court granted the physicians' motion on June 1, 1994. Thereafter, the Hospital and the Center filed similar motions to dismiss which were eventually granted by the trial court.
By her first point of error, Morgan contends the trial court erred in granting the motions to dismiss. Essentially, she claims it was not counsel's intent to file the original petition on Sunday, but rather to simply deliver it into District Clerk Cindy Groomer's hands so that it could be timely filed on Monday. In this connection, Morgan claims by three supplemental points of error that the evidence is legally and factually insufficient to support the trial court's findings that (1) counsel did not communicate to Groomer that she should wait to file the petition on Monday, (2) counsel intended to have Groomer file the petition on Sunday, and (3) Groomer accepted the petition for filing from counsel on Sunday with the intent that it be placed among the official papers of the cause. We disagree.
In reviewing a legal insufficiency point, we must look at the record in the light most favorable to the finding to see if any probative evidence or any reasonable inferences therefrom support the finding, while at the same time disregarding all evidence or reasonable inferences therefrom to the contrary. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In reviewing a factual insufficiency point, we must look at the entire record to determine if probative evidence exists to support the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). If it does, we must determine whether the evidence supporting the finding is so weak or the answer so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Garza v. Alviar, 395 S.W.2d at 823; In Re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).
Here, the record shows counsel telephoned Groomer on Friday, February 11, 1994, and Saturday, February 12, 1994, to arrange a time to deliver to her the original petition in this cause. Counsel informed Groomer that he wanted the petition in her hands before he left town on Monday, February 14, 1994, to begin a trial in Lubbock in federal court. Counsel and Groomer agreed to meet at the district clerk's office on Sunday, February 13, 1994.
When counsel tendered the petition to Groomer, she file-stamped it and handed to him a file-marked copy of the pleading. Groomer did not know if counsel saw her file-stamp the petition. Counsel reported that he did not see her file-stamp the document. Along with the petition, counsel also gave Groomer a check for the filing fee. After receiving the petition and the check, Groomer placed the petition on her civil supervisor's desk. Groomer testified that she informed counsel she would not assign a cause number to the lawsuit or issue citations until Monday. On Monday, February 14, 1994, the lawsuit was assigned a cause number and placed in a shuck or file folder.
Counsel testified that his intention was to have the petition filed on Monday, February 14, 1994, and that he requested Groomer to file it on that day. He reported that he only delivered the petition to Groomer on Sunday because he would be unable to deliver it to her on Monday. Groomer, however, testified that counsel did not tell her to file the lawsuit on Monday. She reported that she accepted the petition in her official capacity as district clerk and intended that it be kept among the papers for that particular lawsuit. When asked what she would have done had counsel informed her he wanted the lawsuit filed on Monday, she responded that she would have told him to bring it in on Monday. Groomer testified that she file-marks every document the moment she receives it. She reported that she would file-stamp a document the moment she received it even if she were given instructions to delay the filing.
Under these circumstances, probative evidence exists to support the challenged findings, and the findings are not clearly wrong or manifestly unjust. The mere fact that counsel's testimony differed from Groomer's, concerning whether he informed her that he wanted the petition filed on Monday, does not render the evidence legally or factually insufficient. Rather, the trial court was free to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any inconsistencies and conflicts. Ramo, Inc. v. English, 500 S.W.2d 461, 467 (Tex.1973). In making its findings, the trial court was entitled to believe all, part, or none of the testimony of any witness. Id. Consequently, point one and supplemental points one, two, and three are overruled.
By her second point of error, Morgan contends the trial court erred in granting the Hospital's and the Center's motions to dismiss because they failed to raise their objections prior to filing their original answers. We agree.
It has long been the law of this state that an objection to an irregularity in the filing of a petition (i.e., filing a petition on Sunday) is waived if not raised before filing an answer. Ullman v. Verne, 68 Tex. 414, 4 S.W. 548, 549 (1887); see also Erback v. Donald, 170 S.W.2d 289, 293 (); Benchoff v. Stephenson, 72 S.W. 106, 107 (Tex.Civ.App.1902, no writ); Burns v. Barker, 71 S.W. 328, 329 (Tex.Civ.App.1902, no writ); Cox v. Trent, 20 S.W. 1118, 1119 (Tex.Civ.App.1892, no writ). Here, the Hospital and the Center filed their original answers on March 4, 1994, and March 14, 1994, respectively. The Hospital then raised its objection to the Sunday filing for the first time when it filed its motion to dismiss on June 7, 1994. Similarly, the Center did not object to the Sunday filing until July 1, 1994, when it filed its motion to dismiss or in the alternative motion to quash citation. Because the Hospital and the Center answered Morgan's lawsuit prior to objecting to the filing irregularity, they waived their objections to the Sunday filing. Consequently, point two is sustained.
Accordingly, we affirm the trial court's order dismissing the lawsuit as to the physicians, and reverse those orders dismissing QUINN, Justice, concurring.
the lawsuit as to the Hospital and the Center and remand the cause for a trial on the merits.
I concur in the original opinion of Justice Dodson for the reasons stated therein and those that follow.
As the dissent notes, Sunday is accorded, by the common law, the status of dies non juridicus. Thus, judicial actions performed during that day have been held void. Yet, the scope of dies non juridicus excludes ministerial acts. Texas State Board of Dental Examiners v. Fieldsmith, 242 S.W.2d 213, 215 (Tex.Civ.App.--Dallas 1951, writ ref'd n.r.e.); 26 A.L.R.2d 996, § 2 (1952); 83 C.J.S. Sunday § 41 (1953). Furthermore, "the matter of filing papers recognized by law as properly belonging in the record of causes" is non-discretionary, that is, ministerial. Bernard v. Crowell, 38 S.W.2d 912, 912 (Tex.Civ.App.--San Antonio 1931, writ ref'd n.r.e.) (involving a bystander's bill of exceptions). Next, an original petition which initiates the "cause" is logically one such paper "properly belonging in the record of causes." Filing same, therefore, is ministerial and outside the parameters of dies non juridicus. Consequently, the act, if done on Sunday, is not void under the common law, 83 C.J.S. Sunday § 49; Havens v. Stiles, 8 Idaho 250, 67 P. 919, 919-20 (1902), or subject to the dies non juridicus teachings of Crabtree v. Whiteselle, 65 Tex. 111 (1885).
I concur in the holding that the evidence is legally and factually sufficient to support the trial court's finding that Sherry Renee Morgan's petition was filed on a Sunday. I also concur in the affirmance of the trial court's dismissal of Morgan's action against Pamela Chandler, M.D., and the other defendant-physicians. However, I do not agree that by filing their answers before they objected to the Sunday filing, Amarillo Hospital District d/b/a Northwest Texas Hospital and Texas Tech University Health Science Center waived their objection to the Sunday filing. Accordingly, I would affirm the...
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