Proctor v. Green, 01-84-73-CV

• Decision Date: 21 June 1984
• Docket Number: No. 01-84-73-CV,01-84-73-CV
• Citation: 673 S.W.2d 390
• Parties: Gerald R. PROCTOR, et al., Appellants, v. Edward J. GREEN, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 390

673 S.W.2d 390

Gerald R. PROCTOR, et al., Appellants, v. Edward J. GREEN, Appellee.

No. 01-84-73-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

June 21, 1984.

Darrel E. Reed, Jr., A.J. Dyess, Jr., Thomas H. Lee, Foreman & Dyess, Houston, for appellants.

Michael A. McEnrue, Brink, Mosier, Fitzgerald, McEnrue, Stephanow & Licata, Houston, for appellee.

Before EVANS, C.J., and BULLOCK and WARREN, JJ.

OPINION

WARREN, Justice.

This is an appeal by writ of error from a default judgment in a suit to revoke a contract for the sale of several businesses.

Appellant, Gerald R. Proctor, as president of Hickory Hut, Inc., contracted to sell the Corporation's interest in four barbeque restaurants to appellee, Edward J. Green. The contract provided that in consideration for the sale, Green would transfer certain rubies "with a $625,000.00 GIA appraised value" and would also assume the corporation's obligations under certain leases and subleases and pay off a $50,000.00 promissory note to a third party. Green subsequently brought this action against Proctor and Hickory Hut, Inc. to rescind the contract, alleging fraud in the inducement.

Copies of the original petition were served on both Proctor and Hickory Hut on June 13, 1983. About a month later, July 7, 1983, the trial court granted a default judgment, rescinding the contract and awarding Green $625,000, plus interest and attorney's fees. Later that same day, Proctor and Hickory Hut filed an answer, and thereafter, they filed a motion to set aside the default judgment. The trial judge initialed a docket entry and notations were made on the face of the default judgment which indicated a ruling that the default judgment was set aside; however, the judge never signed an order to that effect. In a separate mandamus action, Green v. Salazar, No. 01-83-787-CV, January 12, 1984, not published, this court held that the attempt to set aside the default judgment was ineffective, because there was no signed written order, and the trial court's attempt to reinstate the case should be vacated.

In accordance with the opinion in the mandamus action, the trial court vacated the order of reinstatement, and the case is now before the court on a petition for writ of error.

At the outset, the appellee contends that this court's earlier judgment in the mandamus action bars as res judicata the relief sought by appellant in this proceeding. We do not agree. In the cases relied upon by appellee, the subsequent litigation attempted to relitigate the same issue determined by a prior judgment. In this case, the only issue before the court in the mandamus action was whether the trial court had lost jurisdiction to reinstate the case. In the case at bar, the issues presented would not have been proper for consideration in the mandamus proceeding.

The appellee also moves to dismiss this writ of error proceeding, claiming that the writ fails to name all parties with interest adverse to appellant's position. We overrule this contention. In their petition for writ of error, the appellants seek to set aside the default judgment and have named all parties to the original suit. There is no indication in the record that any additional parties would be affected by a reversal or modification of the default judgment.

In the first point of error, appellants argue that the trial court erred in rendering default judgment prior to the due date of their answer. Tex.R.Civ.P. 101 provides that a defendant's written answer shall be filed "at or before 10:00 o'clock a.m. of the Monday next after the expiration of 20 days after the date of service (of the plaintiff's petition)." Appellants were served June 13, 1983. Thus, the 20-day period would expire Sunday, July 3, 1983. The date immediately following was Monday, July 4, 1983, a legal holiday. Tex.Civ.Stat.Ann. art. 4591 (Vernon Supp.1984). Appellants filed their answer July 7, 1983.

In computing any period of time prescribed or allowed by the rules, "the last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor legal holiday." Tex.R.Civ.P. 4. A defendant has until the Monday following the expiration of 20 days to file an answer. When the twentieth day falls on Monday, the appearance day is the Monday of the following week. Andrus v. Andrus, 168 S.W.2d 891 (Tex.Civ.App.--Eastland 1943, no writ). Appellants assert that since the twentieth day fell on a Sunday, Rule 4 extended their time to file an answer to the following Monday, July 11. We disagree that Rule 4 is applicable to the intermediate period. See London v. Chandler, 400 S.W.2d 862 (Tex.Civ.App.--Texarkana, writ ref'd. on other grounds, 406 S.W.2d 203).

In Pearl Assurance Co. v. Williams, 167 S.W.2d 808 (Tex.Civ.App.--Fort Worth 1942, no writ), the court held that the twentieth day was to be included in the computation even though it fell on a Sunday. Citing the opinion of the Subcommittee on the Interpretation of the Rules, the court held that the 20-day intermediate timetable did not come under the purview of Rule 4, because: (1) the time period of 20 days between service and answer is a traditional period in Texas procedure and seems to be the principal interval which Rule 101 has in view; and (2) nothing has to be done on the twentieth day that requires the presence or aid of an official who would normally be unavailable on a Saturday, Sunday or legal holiday.

Upon the same rationale, we hold that because the twentieth day fell on a Sunday, the "Monday next" was the following day, July 4. Since that day was a legal holiday, Rule 4 extended the expiration day for filing an answer to Tuesday, July 5. Appellant's answer was not filed until July 7. Thus, the trial court's judgment signed earlier that day was not premature. Appellants' first point is overruled.

Appellants, in their second point of error, contend that the trial court erred in rescinding the contract, because appellee had not restored or offered to restore any of the consideration he received under the sale contract. In a petition for rescission of a contract, a plaintiff usually must aver that he has returned or offered to...