Ramirez v. Pecan Deluxe Candy Co.

• Decision Date: 03 July 1992
• Docket Number: No. 05-90-01486-CV,05-90-01486-CV
• Parties: Antonio RAMIREZ and Dallas Electric Company, Inc., Appellants, v. The PECAN DELUXE CANDY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 101

839 S.W.2d 101

Antonio RAMIREZ and Dallas Electric Company, Inc., Appellants, v. The PECAN DELUXE CANDY COMPANY, Appellee.

No. 05-90-01486-CV.

Court of Appeals of Texas,

Dallas.

July 3, 1992.

Rehearing Denied Sept. 14, 1992.

Deanne C. Ayers, Dallas, Mary Taylor Henderson, Corpus Christi, for appellants.

Beverly B. Godbey, Cynthia Hollingsworth, Joanne Early, Dallas, for appellee.

Before ENOCH C.J., and OVARD and BURNETT, JJ.

OPINION ON REHEARING

OVARD, Justice.

We withdraw our opinion of January 6, 1992, and vacate our judgment of that date. This is now the Court's opinion.

This case requires us to decide whether a worker's application for and acceptance of workers' compensation benefits for an injury bars intentional tort and strict liability causes of action against his employer for the same injury. Antonio Ramirez and Dallas Electric Company, Inc. appeal from a summary judgment granted in favor of The Pecan Deluxe Candy Company (Pecan Deluxe). In two points of error, appellants assert that the trial court erred in granting Pecan Deluxe's motion for summary judgment because (1) Ramirez's application for and acceptance of workers' compensation benefits did not waive his right to damages for intentional tort and (2) the trial court dismissed causes of action not addressed by Pecan Deluxe's motion for summary judgment. In a cross-point, Pecan Deluxe asserts that this Court should dismiss this appeal because Ramirez did not properly perfect his appeal and because Dallas Electric lacks standing to complain on appeal. Pecan Deluxe urges us, in a second cross-point, to award it damages because appellants brought a frivolous appeal.

We sustain appellants' first point of error regarding Ramirez's right to proceed under an intentional tort cause of action. We overrule appellants' second point of error and Pecan Deluxe's cross-points. Consequently, we affirm in part and reverse in part the trial court's judgment. We remand Ramirez's intentional tort cause of action for a new trial.

FACTS

Ramirez lost both of his arms while cleaning a candy grinding machine for Pecan Deluxe. Initially, one arm was caught in the machine. His other arm became entangled when he tried to free the first arm. Medical technicians had to amputate each arm above the elbow to free Ramirez from the machine. While he was still in the hospital for these injuries, he applied for and received workers' compensation benefits.

He then sued Brittain Machine Shop, Dallas Electric, and his employer Pecan Deluxe. He alleged negligence, gross negligence, negligence per se, and strict liability causes of action against Brittain and Dallas Electric. He alleged an intentional tort cause of action against Pecan Deluxe. Dallas Electric filed a cross-action against its codefendant Pecan Deluxe seeking contribution. Pecan Deluxe moved for summary judgment on all issues relying on Ramirez's application for and receipt of workers' compensation benefits. The trial court granted Pecan Deluxe's motion. Dallas Electric then nonsuited its cross-action

against Pecan Deluxe. The trial court dismissed Ramirez's suit against Brittain and Dallas Electric after the parties reached a settlement agreement.

JURISDICTION

We address Pecan Deluxe's first cross-point because it challenges our jurisdiction. Pecan Deluxe complains that Ramirez and Dallas Electric are not properly before this Court and requests that we dismiss this appeal for want of jurisdiction. It alleges that Ramirez never properly perfected an appeal and that Dallas Electric has no standing to complain on appeal. It originally brought this complaint to our attention in a pre-submission motion to dismiss.

An appealing party must be named as a principal on the appeal bond and must execute the bond or have someone with legal authority to act for him execute the bond. Owen v. Brown, 447 S.W.2d 883, 885 (Tex.1969). Where there are several appellants, a court of appeals acquires jurisdiction only as to those appellants who have timely filed a bond. Governing Bd. v. Pannill, 561 S.W.2d 517, 520 (Tex.Civ.App.--Texarkana 1977, writ ref'd n.r.e.). The appellate court has no jurisdiction over attempted appeals by co-appellants who have not timely filed a bond. Duke v. Lloyd, 584 S.W.2d 742, 742 (Tex.Civ.App.--Waco 1979, no writ).

Multiple appellants may perfect an appeal by filing one bond on behalf of all appellants. We may not dismiss an appeal for procedural defects of form or substance without allowing an opportunity to correct the defect. Woods Explor. & Producing Co. v. Arkla Equip. Co., 528 S.W.2d 568, 570 (Tex.1975). An appellant who shows that he was accidentally omitted from the jurisdiction-invoking cost bond has the right to amend the bond by adding his name to it. Powell v. City of McKinney, 711 S.W.2d 69, 70 (Tex.App.--Dallas 1986, writ ref'd n.r.e.). This rule allowing amendment applies even when the person executing the cost bond was not a proper party on appeal. See Shults v. State, 682 S.W.2d 260, 260-61 (Tex.1984) (sole shareholder, who executed appeal bond only in his name, had no standing to appeal but corporate appellant should be allowed to amend bond); Owen, 447 S.W.2d at 884-85 (defendant allowed to amend bond executed by defendant's insurer who was not a party to the suit).

Under these rules, whether Dallas Electric is a proper party to this appeal does not affect this Court's jurisdiction of Ramirez's appeal. The only issue is whether Ramirez has established that Dallas Electric filed the appeal bond on behalf of both parties and accidentally omitted Ramirez as a principal.

The appeal bond states in pertinent part:

COST BOND ON APPEAL

WHEREAS, in the above entitled and numbered cause pending in the 160th Judicial District Court of Dallas County, Texas, an Order of Dismissal was signed on the 7th day of August, 1990 dismissing The Pecan Deluxe Candy Company herein, from which judgment Antonio Ramirez and Dallas Electric Company, Inc. desire to appeal to the Court of Appeals for the Fifth District of Texas, City of Dallas, Texas:

NOW, THEREFORE, We, Dallas Electric Company, Inc., as principal and Westchester Fire Insurance Company of 4040 N. Central Expwy, Dallas, Texas 75204, as surety, acknowledge ourselves bound to pay to The Pecan Deluxe Candy Company, the sum of One Thousand Dollars ($1000.00), as prescribed by Rule 46 of the Texas Rules of Appellate Procedure, conditioned that Anthony Ramirez and Dallas Electric Company, Inc., appellants, shall prosecute the appeal with effect, and shall pay all other costs which have accrued in the trial court and the cost of the statement of facts and transcript.

(emphasis added).

In response to an order of this Court, Ramirez and Dallas Electric supplemented the record with the affidavit of Ramirez's attorney. The affidavit states that Ramirez intended to appeal, that he intended Dallas Electric to file the cost bond on his In addition, Pecan Deluxe requests that we dismiss this appeal for want of jurisdiction because Dallas Electric has no standing to complain about the adverse judgment affecting a third party. For a summary judgment to be final, it must dispose of all parties and all issues. Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex.1984). It does not matter whether the trial court accomplishes this in one order or in a series of orders. See Runnymede Corp. v. Metroplex Plaza, Inc., 543 S.W.2d 4, 5 (Tex.Civ.App.--Dallas 1976, writ ref'd). The dismissal of Dallas Electric disposed of the last party and issue before the trial court. Dallas Electric, as a party to the judgment, has standing to appeal. Stroud v. Stroud, 733 S.W.2d 619, 620 (Tex.App.--Dallas 1987, no writ). Once Dallas Electric filed a timely appeal bond, we gained jurisdiction over this appeal.

behalf, and that his omission as principal was inadvertent. In light of this affidavit and the statements in the cost bond, we allowed Ramirez to amend the cost bond. Thus, we have jurisdiction over Ramirez's appeal.

Dallas Electric's standing to complain of the take-nothing judgment against Ramirez is a different issue from Dallas Electric's standing to appeal or our jurisdiction over this case. See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex.1982). Although the law may prevent Dallas Electric from recovering, we will not dismiss for want of jurisdiction. See Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 819 (Tex.1984) (settling tortfeasor had no right to indemnity or contribution from joint non-settling tortfeasor). We overrule Pecan Deluxe's first cross-point.

INTENTIONAL TORT UNDER WORKERS' COMPENSATION ACT

In his first point of error, Ramirez asserts that the trial court erred in granting Pecan Deluxe's motion for summary judgment. Pecan Deluxe responds that the receipt of workers' compensation benefits bars Ramirez's intentional tort cause of action. Ramirez argues that Pecan Deluxe had the burden to prove that Ramirez made an election of remedies. He argues that Pecan Deluxe did not meet this burden because it failed to show that there was a final settlement between himself and Pecan Deluxe's workers' compensation carrier, Liberty Mutual Insurance Company.

Summary judgment may be rendered only if the pleadings, depositions, admissions, and affidavits show (1) that there is no genuine issue as to any material fact and (2) that the moving party is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex.1989). A summary judgment seeks to eliminate patently unmeritorious claims and untenable defenses, not to deny a party its right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).

In a summary judgment proceeding, Pecan Deluxe as movant must either (1) disprove at least one element of each of Ramirez's theories of recovery or (2) plead and conclusively show each essential element of an...