Noorian v. McCandless

• Court: Texas Court of Appeals
• Citation: Noorian v. McCandless, 37 S.W.3d 170 (Tex. App. 2001)
• Decision Date: 18 January 2001
• Petition History: pet. denied
• Parties: <!--37 S.W.3d 170 (Tex.App.-Houston 2001) ROYA NOORIAN, AS NEXT FRIEND AND NATURAL PARENT OF MONA NOORIAN, ARTA NOORIAN, ALEX NOORIAN, AND ARIANA NOORIAN, MINOR CHILDREN, Appellant v. ROBERT G. MCCANDLESS, M.D., Appellee NO. 01-99-00169-CV In The Court of Appeals For The First District of Texas

Page 170

37 S.W.3d 170 (Tex.App.-Houston [1st Dist.] 2001)

ROYA NOORIAN, AS NEXT FRIEND AND NATURAL PARENT OF MONA NOORIAN, ARTA NOORIAN, ALEX NOORIAN, AND ARIANA NOORIAN, MINOR CHILDREN, Appellant v ROBERT G. MCCANDLESS, M.D., Appellee

NO. 01-99-00169-CV

In The Court of Appeals For The First District of Texas

January 18, 2001

On Appeal from the 215th District Court Harris County, Texas Trial Court Cause No. 95-12705

Panel consists of Justice Mirabal, Wilson, and Nuchia.

OPINION

WILSON, Justice.

Appellant Roya Noorian appeals from the trial court's order dismissing all claims against appellee Robert G. McCandless, M.D. with prejudice. We must determine if this Court has jurisdiction to hear the appeal, and if so, whether the trial court has rendered a proper judgment. We affirm.

Facts

On March 11, 1995, Roya and her mother-in-law and father-in-law¹ sued multiple defendants² over her husband Bijan Noorian's death. Bijan died of lung cancer on January 5, 1995, and Roya claimed the defendants were negligent in their diagnosis and treatment.

On September 20, 1996, the trial court rendered a partial summary judgment in favor of defendant Houston Imaging Center, Inc. and against Roya "in all capacities," Tahereh Noorian, and Habibbollah Noorian. On October 4, 1996, Roya, as next friend of her minor children, signed a settlement agreement and release with Respiratory Consultants and Doctors Berger, Lloyd, Casar, and Miller, in which the settling defendants' insurer paid $700,000. On October 7, 1996, the trial court rendered a partial summary judgment that Roya, in her individual capacity and as independent executrix of Bijan's estate, take nothing from the settling defendants. On October 9, 1996, the trial court approved the October 4, 1996 settlement and signed an agreed interlocutory judgment discharging the settling defendants from any further liability in the case and dismissing with prejudice the claims of Tahereh and Habibbollah. On October 18, 1996, the trial court signed an amended agreed interlocutory judgment, which also dismissed Tahereh's and Habibbollah's claims against the settling defendants.

On February 5, 1997 and just before trial, the plaintiffs signed a settlement agreement with McCandless. In this settlement, McCandless' insurer, Insurance Corporation of America ("ICA"), on behalf of McCandless, agreed to pay the four minor children (Mona Noorian, Arta Noorian, Alex Noorian, and Ariana Noorian) a total of $700,000 on the date of the settlement hearing, on or before March 5, 1997. In exchange, plaintiffs agreed (1) to release, discharge, and indemnify McCandless and ICA from any claims related to the lawsuit and (2) to file an agreed motion to dismiss their claims against McCandless with prejudice.³ On February 18, 1997, Roya, as next friend of her minor children, nonsuited Methodist Hospital. On February 21, 1997, the trial court held a hearing to approve the settlement for the minor children. The trial court orally approved the settlement:

THE COURT: All right, [counsel for plaintiffs], crossed all your T's and dotted all your I's.

[COUNSEL FOR PLAINTIFFS]: Thank you, Judge.

THE COURT: Court will approve the settlement as to that.

The settlement agreement was neither dictated into the record nor offered and admitted as an exhibit. In two separate orders also signed on February 21, 1997, the trial court rendered summary judgment (1) that Roya (in her individual capacity), take nothing against McCandless and (2) that Roya (in her individual capacity), Tahereh, and Habibbollah take nothing against Methodist Hospital.

On March 5, 1997, the trial court signed an order stating in part:

It is ORDERED, ADJUDGED, and DECREED that absent an Order, currently in effect, signed on or before March 5, 1997 by or through the Texas State Board of Insurance ordering ICA not to pay claims, ICA shall issue a check to Plaintiffs in the above-referenced matter for $690,000.00. This check shall be delivered to counsel for Plaintiffs per the terms of the settlement agreement entered into by the parties herein and approved by the Court on February 21, 1997.

No formal written agreed judgment was ever signed, yet the parties acted as though a final judgment had been rendered in the case.

The Texas Department of Insurance placed ICA into conservatorship on March 4, 1997. A Travis County district court eventually placed ICA into receivership, and ICA never funded the settlement. ICA was later acquired by PIE Mutual Insurance Company and PIE Mutual's parent corporation, PIE Financial Corporation. Roya, in both her individual capacity and as next friend of her minor children, sued PIE Mutual and PIE Financial in federal court for, among other things, breach of contract. Noorian v. PIE Mut. Ins. Co., No. G-97-245 (S.D. Tex.). Roya eventually settled this lawsuit for $400,000.

In April 1998, the plaintiffs filed an application for turnover relief directed at McCandless for the $300,000 deficiency, apparently believing a final judgment had been rendered and execution on that judgment was proper. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (Vernon 1997) (authorizing turnover order). On April 16, 1998, McCandless responded and requested a protective order based on the February 21, 1997 take-nothing judgment. On May 4, 1998, the trial court denied the application for turnover relief and granted the protective order, prohibiting the plaintiffs from any collection activity or discovery as to McCandless.

On August 27, 1998, the plaintiffs filed a motion to dissolve the protective order, arguing that they were entitled to postjudgment discovery under Texas Rule of Civil Procedure 621a and that the trial court's March 5, 1997 order constituted an agreed judgment. On October 30, 1998, McCandless moved to enforce what he described as the February 21, 1997 and March 5, 1997 agreed judgment, in which McCandless claimed the plaintiffs released him from all liability. On November 10, 1998, the plaintiffs filed an amended motion to dissolve the protective order. On November 23, 1998, the trial court signed an order dismissing all claims against McCandless with prejudice. On December 22, 1998, the plaintiffs filed a motion for new trial.

On January 5, 1999, the trial court signed two orders (1) granting all the plaintiffs' nonsuit of Methodist Hospital and (2) granting all the plaintiffs' nonsuit of Houston Imaging, Inc. On February 17, 1999, Roya filed a notice of appeal as next friend of the minor children.

Discussion

Appellate Jurisdiction

McCandless challenges this Court's jurisdiction on the basis that the trial court's February 21, 1997 oral approval of the settlement constituted rendition of a final judgment. McCandless also claims that Roya has judicially admitted that the February 21, 1997 judgment was a final judgment. We disagree.

Even if we assume that the trial court's brief February 21, 1997 statement was an oral rendition of judgment, it certainly was not a written judgment. The appellate timetables run from the signing date of whatever order makes the judgment final and appealable, i.e., whatever order disposes of any parties or issues remaining in the appeal. Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995); see Tex. R. Civ. P. 329b; Tex. R. App. P. 26.1. The March 5, 1997 order was not a final judgment, either, as it did not dispose of any parties or issues.

McCandless also claims that Roya's notice of appeal is defective because it specifically refers to the November 23, 1998 order when Roya is complaining about the February 21, 1997 "agreed judgment." While it is true that Texas Rule of Appellate Procedure 25.1(d)(2) requires an appealing party to state "the date of the judgment or order appealed from," McCandless ignores the fact that a final judgment may consist of several orders that cumulatively dispose of all parties and issues. Even though the date of the final judgment in this case is January 5, 1999, not November 23, 1998, the error is not jurisdictional. ⁴ See Tex. R. App. P. 25.1(f) (allowing for amended notice of appeal to correct defects or omissions).

There is, however, another potential jurisdictional problem in this appeal. Based on the appellate record, the following claims have not been disposed of: (1) Roya's individual claims against Connelly; (2) Roya's claims as next friend of her minor children against Connelly; and (3) Tahereh Noorian's and Habibbollah Noorian's claims against Connelly. McCandless suggests that the Mother Hubbard clause in the November 23, 1998 order disposes of the remaining claims against Connelly. See Mafrige v. Ross, 866 S.W.2d 590, 590 n.1 (Tex. 1993) (discussion of Mother Hubbard clauses in summary judgment orders). We agree. ⁵

Merits

In point of error one, Roya contends the trial court erred in prohibiting her from any collection activity on the agreed judgment. Implicit in her argument is an assertion that the trial court has rendered a judgment in this case as between Roya and McCandless that incorporates the February 5, 1997 settlement.

Roya relies on Samples Exterminators v. Samples for the proposition that an agreed judgment is in fact rendered when the trial court announces its decision in open court. 640 S.W.2d 873, 875 (Tex. 1982). We agree with this statement of the law, but hold it does not apply to the facts of this case. In Samples, the trial court made the following comments on the record:

It appearing to the Court that all of you did agree in open court to this settlement, the Court approves the settlement made in open court and orders all parties to sign any and all papers necessary to carry out this agreement and to carry out the agreement that was made and dictated into the record.

Id., 640 S.W.2d at 874.

In this case, the trial court only said the following:

THE COURT: All right, [counsel for plaintiffs], crossed all your T's and dotted all your I's.

[COUNSEL FOR PLAINTIFFS]: Thank you, Judge.

THE COURT: Co...