Philbrook v. Berry, 01-84-0410-CV
| Decision Date | 13 September 1984 |
| Docket Number | No. 01-84-0410-CV,01-84-0410-CV |
| Citation | 679 S.W.2d 651 |
| Parties | Delvin Stanley PHILBROOK, et ux., Relators, v. The Honorable Weldon BERRY, et al., Respondents. (1st Dist.) |
| Court | Texas Court of Appeals |
Donna Cywinski, William Ferebee, Ferebee & Ferebee, Houston, for relators.
Richard Josephson, Baker & Botts, Houston, for respondents.
Before EVANS, C.J., and BULLOCK and WARREN, JJ.
Relators seek a writ of mandamus to compel the Honorable Weldon Berry, Judge of the 80th District Court of Harris County, to set aside an order granting a motion for new trial filed by Owens-Illinois, Inc., a named defendant in the original lawsuit filed by the relators. They allege that the motion for new trial filed by Owens-Illinois was filed in a different cause number and thus is ineffective.
On December 27, 1983, relators filed suit in Harris County against eight defendants, including Owens-Illinois, seeking recovery for injuries allegedly caused by Mr. Philbrook's exposure to asbestos. The action was assigned to the 80th District Court and given cause no. 83-74655.
Owens-Illinois was served with citation through its registered agent on January 13, 1984, and a copy of the petition was forwarded to its attorney. No answer was filed within the statutory time limit. On February 20, 1984, the court heard evidence in support of relators' motion for default judgment against Owens-Illinois and granted it.
On February 20, 1984, the trial court signed an order granting relators' "Motion for Severance," severing relators' claim against Owens-Illinois from cause no. 83-74655 into a separate cause of action, which was docketed as cause no. 83-74655-A. The court also signed a default judgment in cause no. 83-74655-A that awarded relators $2.5 million against Owens-Illinois.
On February 28, 1984, relators mistakenly filed a motion to transfer documents from cause no. 83-84655 to 83-84655-A; no certificate of service was attached to indicate whether the opposing parties had been notified of the motion. On February 29, the court signed an order transferring various instruments from cause no. 83-8 4655 to 83-8 4655-A. Also on February 29, before learning of the default judgment, counsel for Owens-Illinois filed an answer in the original cause no. 83-74655.
On March 21, 1984, the thirtieth day after the default judgment had been entered in cause no. 83-74655-A, Owens-Illinois filed a motion for new trial in cause no. 83-74655. After a hearing on April 2, the court granted Owens-Illinois' motion and signed an order granting a new trial in cause no. 83-74655-A, although relators' counsel states that he did not receive a copy of the order until after it was signed. The order stated that the court was of the opinion that a new trial should be granted, and also included a finding that severance was no longer necessary and that all matters involving the parties would be conducted in cause no. 83-74655. No date appeared on the order, but a docket entry indicated that it was signed on April 13.
On May 10 relators filed a motion objecting to the April 13 order on the grounds that it did not use "order" language, that the court had no jurisdiction to rule, because no motion for new trial had been filed within 30 days of the default judgment in cause no. 83-74655-A, and that the order recited no date of signature. An amended motion objecting to the April 13 order was later filed, which added that Owens-Illinois' motion for new trial was overruled as a matter of law on May 5, 1984. At a hearing on June 11, the court overruled relators' objections and signed an order nunc pro tunc that added a date of signature, traditional "order" language, and other details of the decree granting a new trial.
Relators do not list separate points of error in their petition for writ of mandamus, but raise several arguments in their brief. First, they assert that the trial court lost its jurisdiction in cause no. 83-74655-A on March 22, because the motion for new trial was filed in the original cause no. 83-74655. Next, relators argue that the April 13 order was ineffective because it lists only findings and does not order a new trial. Finally, relators assert that the two causes have never been effectively consolidated, so that the judgment in cause no. 83-74655-A is final and Owens-Illinois must seek any relief on appeal rather than in a new trial.
In overruling relator's third argument, we note that the two causes were severed without notice to opposing counsel, as required by Tex.R.Civ.P. 72, although it appears that counsel's identity was known to relators. While the trial court may entertain oral motions in the course of trial, Tex.R.Civ.P. 21, a motion which disposes of a party should be in writing and with proper notice to the parties. See City of Houston v. Sam P. Wallace & Co., 585 S.W.2d 669 (Tex.1979). The purpose of notice is to give opposing parties an opportunity to protect their interests, as well as to prevent surprise. See Barton v. Pacific Employers Indemnity Co., 532 S.W.2d 128, 130 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.); Three Bee Investment Corp. v. Galveston-Houston Co., 166 S.W.2d 382 (Tex.Civ.App.--Galveston 1942, no writ).
Although failure to give notice of a severance would not in every case be erroneous, in the case at bar, the lack of notice of the severance was clearly injurious to Owens-Illinois, and the order was erroneous. Without notice, Owens-Illinois could not have discovered the default judgment by examining the clerk's file in cause no. 83-74655. The failure of relators to give notice of the severance caused Owens-Illinois to file its motion for new trial in the wrong cause. We hold that the trial court acted properly in granting the mis-numbered motion for new trial.
Relators next argue that the April 13 "order" is nothing more than a list of findings by the trial court. Although they do not specify the language which should have been employed, we assume that relators are concerned that the instrument does not use the words "ordered, adjudged and decreed" typically associated with an order. The order does contain the following language:
BE IT REMEMBERED that on the 2nd day of April, 1984, came on before the Court the motion for a new trial of defendant, Owens-Illinois, Inc. and the Court having considered the evidence, reviewed the pleadings, motions, and affidavits and having heard argument of counsel is of the opinion that ... the motion for a new trial should be in all things granted.
Relators assert that the order fails to dispose of issues pending before the court, that it is so uncertain and indefinite that it is not sufficient basis on which to grant a new trial,...
To continue reading
Request your trial
-
Wesco Distrib. Inc. v. Westport Group, Inc.
...are: (1) to give those parties entitled to notice an opportunity to protect their interests, and (2) to prevent surprise. Philbrook v. Berry, 679 S.W.2d 651, 653 (Tex.App.-Houston [1st Dist.] 1984, orig. proceeding). There are many examples of courts applying the notice provision to protect......
-
Harper v. Welchem, Inc.
...an ambiguous order is construed in light of the motion upon which it was granted. Lone Star Cement Corp., 467 S.W.2d at 405; Philbrook v. Berry, 679 S.W.2d 651, 654 (Tex.App.--Houston [1st Dist.] 1984, orig. proceeding). The underlying motion in this case is of little help in guiding us to ......
-
Sommers v. Aguirre (In re Santoyo)
...are: (1) to give those parties entitled to notice an opportunity to protect their interests, and (2) to preventsurprise. Philbrook v. Berry, 679 S.W.2d 651, 653 (Tex.App.-Houston [1st Dist.] 1984, orig. proceeding). There are many examples of courts applying the notice provision to protect ......
-
McGrew v. Heard, 01-88-01183-CV
...served with notice of the nonsuit or had actual notice of it. This Court addressed a similar situation in Philbrook v. Berry, 679 S.W.2d 651 (Tex.App.--Houston [1st Dist.] 1984), overruled, 683 S.W.2d 378 (Tex.1985). Philbrook filed suit against Owens-Illinois and other defendants under cau......