Reimer v. Scott

• Decision Date: 01 March 1984
• Docket Number: No. A14-83-070CV,A14-83-070CV
• Citation: 666 S.W.2d 384
• Parties: Joe REIMER, Appellant, v. Thomas R. and Frieda SCOTT, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 384

666 S.W.2d 384

Joe REIMER, Appellant, v. Thomas R. and Frieda SCOTT, Appellee.

No. A14-83-070CV.

Court of Appeals of Texas,

Houston (14th Dist.).

March 1, 1984.

Rehearing Denied March 22, 1984.

Joe Reimer, pro se.

Andrew Wooley, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.

J. CURTISS BROWN, Chief Justice.

Joe Reimer (Reimer or appellant) appeals from a judgment in favor of Frieda Scott and the estate of Thomas R. Scott (the Scotts or appellee). In his suit Reimer sought to enforce a contract for sale of real estate. He alternatively sought enforcement of either a contract entered into in March 1970, or one entered into in October 1975. The trial court directed a verdict, finding from undisputed evidence that suit under the 1970 contract was barred by res judicata, and that the 1975 contract was a novation.

Judgment was rendered on a jury verdict which awarded the Scotts title and possession to the tract of land, $26,454.00 for use and occupancy of the land, $5,000.00 exemplary damages, and $31,000.00 attorneys' fees. The judgment was based in part upon a partial summary judgment rendered previously. No statement of facts has been filed. The appeal has proceeded upon the transcript only.

In seven points of error appellant asserts the trial court lacked jurisdiction of the case; that the partial summary judgment, the directed verdict, and jury verdict were in error; that evidence was improperly admitted; and that a motion for continuance was improperly denied.

Appellant claims the trial court lacked jurisdiction because on May 16, 1980, the judged signed a conditional order prospectively dismissing the case. The order stated the case would be dismissed if not tried by October 1, 1980. On October 3, 1980, the judge signed an order which acknowledged the suggestion that Thomas R. Scott had died and ordered the case continued. On March 10, 1981, the parties were granted a joint motion to retain the cause on the docket. Appellant participated in another joint motion to retain and filed an amended petition with the court before proceeding to trial in September of 1982.

This sequence of events did not cause the case to be dismissed. The original order of May 16, 1980 was conditional and interlocutory. An interlocutory order is not final, and does not terminate the jurisdiction of the trial court. An order is final if it permanently adjudicates some substantial right and does not lead to further hearing on the issue. Meek v. Hart, 611 S.W.2d 162, 163 (Tex.Civ.App.--El Paso 1981, no writ). An order containing a condition will lead to further hearing, or at least to a subsequent order. The order was also interlocutory because it did not dispose of the Scotts' cross-complaint. An order or judgment cannot be final unless it expressly or impliedly disposes of cross-complaints. Davis v. McCray Refrigeration Sales Corp., 136 Tex. 296, 150 S.W.2d 377, 378 (1941). The trial court had jurisdiction of the case.

Reimer also argues the trial court lost jurisdiction due to his own attempted removal of the case to federal court. When Reimer attempted to remove the case, the United States District Court promptly remanded the case and the state court proceeded to trial. Appellant claims the state proceedings were automatically stayed under TEX.R.CIV.P. 237(a) and FED.R.CIV.P. 62(a). Rule 237(a) does not apply to this case. Its purpose is to protect defendants who have not filed an answer from default. The order of remand terminates the jurisdiction of the federal court and immediately restores the jurisdiction of the state court. Brown v. State Farm Mutual Automobile Insurance Co., 449 S.W.2d 93, 96 (Tex.Civ.App.--Fort Worth 1969, no writ). Rule 62(a) does not apply to this case because it is limited by 28 U.S.C. § 1447(c) which allows a state court to proceed when an action is improvidently removed.

In this...