R. B. Butler, Inc. v. Henry

• Decision Date: 26 October 1979
• Docket Number: No. 6080,6080
• Citation: 589 S.W.2d 190
• Parties: R. B. BUTLER, INC. et al., Appellants, v. Fred HENRY et ux., Appellees.
• Court: Texas Court of Appeals

Page 190

589 S.W.2d 190

R. B. BUTLER, INC. et al., Appellants, v. Fred HENRY et ux., Appellees.

No. 6080.

Court of Civil Appeals of Texas, Waco.

October 26, 1979.

Rehearing Denied Nov. 15, 1979.

Royce R. Till and Russell H. McMains, Fulbright & Jaworski, Houston, Steven C. Barkley, Evans & Moses, Beaumont, for appellants.

Mac L. Bennett, Jr., Bennett & Bennett, Normangee, John M. O'Quinn and Ernest H. Cannon, Riddle, Murphrey, O'Quinn & Cannon, Houston, for appellees.

OPINION

McDONALD, Chief Justice.

Appellees Henry and wife, plaintiffs, sued appellants R. B. Butler, Inc. and McMahan Construction Company, Inc., defendants, seeking recovery for the destruction of their home and its contents that resulted from a fire on April 25, 1978. Plaintiffs alleged defendants dozed brush from a road right-of-way, piled it near their home, set it on fire when the wind was blowing from the direction of the brush pile toward their home, that the wind blew the fire onto the roof of their home burning it down, and that their home and all its contents were a complete loss.

It was established that Butler had a contract with the State of Texas to widen and pave Farm Road 1453 which ran near plaintiffs' home; that McMahan agreed with Butler to doze off the right-of-way, stack and burn the brush for Butler; that McMahan dozed, stacked and burned a pile of brush 306 feet from plaintiffs' home; that plaintiffs' home caught fire and burned; and that the house and its contents were a total loss.

Trial was to a jury which found: 1) through 8) McMahan was negligent in where and how it set and tended the brush fire, which was a proximate cause of plaintiffs' loss.

9), 10) and 11) Butler failed to furnish proper protection to the adjacent landowners, which was negligence, and a proximate cause of plaintiffs' loss.

12) Butler's negligence caused 50% Of the occurrence and McMahan's negligence caused 50% Of the occurrence.

13) Plaintiffs' damage for loss of the house was $43,000.

14) Plaintiffs' damage for loss of furniture and possessions was $38,000.

The trial court rendered joint and several judgment for plaintiffs against McMahan and Butler on the verdict for $84,765.12 ($81,000. plus prejudgment interest), and further decreed that Butler and McMahan have each established a right to require the other to pay one-half of the judgment, and that if either one pays more than one-half it shall have the right to recover from the other such excess payment.

Both McMahan and Butler appeal.

McMahan's Appeal

McMahan appeals on 3 points asserting there is no evidence and/or insufficient evidence to support the jury's finding of $38,000 in answer to Issue 14 (plaintiffs' damage for loss of furniture and possessions).

Appellees have filed motion to dismiss McMahan's appeal on the ground that McMahan's appeal bond was not filed within 30 days after judgment as required by Rule 356 TRCP.

Judgment was rendered by the trial court on November 15, 1978; McMahan filed no motion for new trial; and filed its appeal bond on February 12, 1979.

Rule 356 TRCP requires appeal bond to be filed "within thirty days after rendition of judgment or order overruling motion for new trial, or after motion for new trial is overruled by operation of law".

Such requirement is mandatory and jurisdictional. Glidden Co. v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315; Bellmead State Bank v. Campbell, Tex.Civ.App. (Waco) nwh, 386 S.W.2d 205; Wilson v. Worley, Tex.Civ.App. (Waco) nre, 562 S.W.2d 22.

And the fact that Butler filed motion for new trial and timely filed its appeal bond cannot help McMahan.

An appellant must base his appeal on his own actions and cannot rely on the acts of other parties to extend the time limits within which he must file his appeal bond. Olivares v. Service Finance Corp., Tex.Civ.App. (San Antonio) nwh, 513 S.W.2d 946; Angelina County v. McFarland, Tex., 374 S.W.2d 417; Perez v. Los Fresnos State Bank, Tex.Civ.App. (Corpus Christi) nwh, 512 S.W.2d 796; South Padre Development Co., Inc. v. Realty Growth Investors, Tex.Civ.App. (Corpus Christi) nre, 543 S.W.2d 880.

Even if we did have jurisdiction we would be compelled to overrule McMahan's points because McMahan is attacking the very judgment it requested the trial court to render. McMahan filed motion for judgment reciting the jury's verdict and praying the trial court render judgment jointly and severally against itself and Butler for $81,000. plus interest at 9% From April 25, 1978. A party who induces the court to render a certain judgment cannot later complain of such judgment. Rogge v. Gulf Oil Corp., Tex.Civ.App. (Waco) nre, 351 S.W.2d 565; Smith v. Chipley, Com.App., Adopted S.Ct., 118 Tex. 415, 16 S.W.2d 269; American Surety Co. v. Whitehead, Com.App., 45 S.W.2d 958.

Butler's Appeal

Points 1 through 8 contend the trial court erred in overruling Butler's motion to disregard the jury's answers to Issues 9, 10 and 11 because Butler was not legally responsible for guarding against McMahan's negligence; and that there is no evidence and/or insufficient evidence to support the jury's answers to Issues 9, 10 and 11.

Such issues found Butler failed to furnish...