Southwestern Bell Tel. Co. v. Griffith

Decision Date07 December 1978
Docket NumberNo. 1333,1333
Citation575 S.W.2d 92
PartiesSOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Napoleon M. GRIFFITH, Appellee.
CourtTexas Court of Appeals
OPINION

BISSETT, Justice.

In this products liability case involving a one-vehicle accident allegedly caused by a negligently and defectively installed mobile telephone unit, Southwestern Bell Telephone Company, appeals from a judgment rendered by the District Court of Matagorda County, Texas, in favor of Napoleon Griffith. Trial was to the court, sitting without a jury. Findings of fact and conclusions of law were filed. The parties will be referred to as "plaintiff" and "defendant," as they were in the trial court.

Defendant does not question the award of $420,371.68 as damages. It makes several distinct attacks on several rulings made by the trial court. It asserts that the trial court abused its discretion in refusing to grant it a continuance. It claims that several findings of fact are not supported by any evidence, or, in the alternative, that such findings are against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. It complains that the trial court erred in failing to make certain requested findings of fact. It contends that the judgment rendered by the trial court is void because of improper rendition and entry. Twenty-three points of error, several of which contain numerous subsections, are brought forward in this appeal.

Defendant contends in its 22nd point that the judgment is void because: 1) it was not pronounced in open court; 2) it was not rendered in open court; and 3) it was signed by the trial judge outside of Matagorda County, Texas. The point cannot be sustained.

The judgment of a court is what the court pronounces; it is rendered whenever the trial court orally announces its decision in open court, or signifies out of court to the clerk of the court, in his official capacity, either orally or in writing, its decision of the law upon the matters at issue. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.Sup.1970); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). A judgment regular on its face is presumed to be properly "pronounced" and "rendered." Texas Life Insurance Co. v. Texas Building Co., 307 S.W.2d 149 (Tex.Civ.App. Fort Worth 1957, no writ).

In the case at bar, the judgment is valid on its face. The docket entry relating to its "pronouncement" and "rendition" was made on July 28, 1977, and reads:

"Plaintiff awarded $407,000.00 plus all medical, hospital and drug bills admitted into evidence as per judgment to be filed."

The judgment was signed on October 10, 1977.

Defendant's amended motion for new trial was heard on December 7, 1977. Defendant's counsel was present at the hearing, and on that date, filed with the clerk a handwritten motion, wherein the trial court was requested to receive:

"Evidence as to circumstances surrounding time, place and circumstances under which Court's docket entry of July 28, 1977 was made."

A court reporter was not present at the time and there is nothing to indicate that counsel for defendant requested a court reporter to be present and to make a record of the proceedings had on December 7, 1977. There is no showing that any evidence was introduced at the hearing.

On February 6, 1978, which was long after the amended motion for new trial was overruled, Mr. Leland B. Kee, leading counsel for defendant at the trial of the case, filed an Affidavit with the District Clerk of Matagorda County, Texas. It is included in the transcript, which was filed in this Court on February 16, 1978. The affiant stated therein that the docket entry of July 28, 1977, was not made in open court, and at the hearing on defendant's amended motion for new trial, which was held December 7, 1977, he presented his handwritten motion to the judge, but that he (counsel for defendant) was not permitted to introduce evidence thereon. A supplemental transcript was filed on March 3, 1978; included therein is a "Bill of Exception" signed by the trial judge on February 27, 1978. The judge stated therein:

"On July 28, 1977, I went to Bay City, Texas, where the docket sheet was on file with the District Clerk. On that date, I announced, pronounced, rendered and made my decision and judgment in this case and recorded it on the docket sheet in open court in Bay City, Matagorda County, Texas."

The judge also said:

"This judgment was signed in open court on October 10, 1977, and counsel for both parties, including Mr. Kee, were so informed."

The "Affidavit" and the "Bill of Exception" are not properly part of the appellate record before us. We do not consider either of them in disposing of defendant's point. Even if we were to consider them, all they show is a dispute between judge and counsel as to what actually took place at the time in question. Defendant's counsel was not present in the courtroom in Matagorda County, Texas, at any time on July 28, 1977. The judge said that he (the judge) was present. Under the circumstances, we are not required to decide the issue.

In order to prevail, the burden was on defendant to bring this Court a proper record of the occurrences in the trial court which shows that the judgment was void. Defendant did not meet that burden. Fundamental error is not apparent on the face of the record. There is no evidence in the record that the handwritten motion was ever called to the attention of the trial judge. Nothing is presented for appellate review. See Birge v. Toppers Menswear, Inc., 473 S.W.2d 79 (Tex.Civ.App. Dallas 1971, writ ref'd n. r. e.); Smith v. Davis, 453 S.W.2d 340 (Tex.Civ.App. Fort Worth 1970, writ ref'd n. r. e.). Point 22 is overruled.

Defendant, in point 23, contends that the trial court erred in refusing to grant its motions for continuance. Two motions were presented to the trial court during the morning of July 18, 1978, the date of trial. Both were denied. The first motion was in writing, and was sworn to by defendant's attorney. Two grounds were asserted therein. First, it was asserted that plaintiff had violated the provisions in an order made by the court on June 28, 1977, whereby plaintiff was directed to answer certain questions previously asked him on deposition; that such answers "are a sham and a farce," and are "unresponsive to the questions propounded" to plaintiff on deposition; and, consequently, defendant "cannot safely proceed to trial" until such time as plaintiff answers the questions. Second, plaintiff's first amended original petition, which was filed on July 8, 1977, alleged "an entirely new and different cause of action from that attempted to be alleged in Plaintiff's Original Petition"; as a result of the allegations made therein, "defendant cannot safely proceed to trial against these allegations without a reasonable amount of time to investigate these allegations and prepare its defenses thereto."

The law is well settled that the trial court's denial of a motion for a continuance is within the sound discretion of the trial court and it will be presumed, absent a showing of an abuse of discretion, that the court properly exercised its discretion. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1963).

With respect to the first ground, plaintiff refused to answer certain questions when his deposition was taken on March 6, 1976. It was not until June 21, 1977, some 15 months later, that defendant filed a motion to compel plaintiff to answer those questions. An order to that effect, signed on June 28, 1977, directed plaintiff to do so "within ten days" from the date the order was signed. Plaintiff filed his answers on July 11, 1977. Defendant did not contest those answers by formal objections or exceptions. It did, however, allege in the motion for continuance that it could not properly prepare its defense to the action until such time that plaintiff did answer the questions. The record shows that plaintiff did answer the questions, but defendant was not satisfied by those answers.

Insofar as the second ground is concerned, defendant filed special exceptions on the day of trial to plaintiff's first amended original petition. The contentions set forth in the special exceptions were substantially the same contentions set forth in the written motion for a continuance. The court overruled all but one of them, conditioned, however, that plaintiff would, by a trial amendment, meet Special Exception No. 2, wherein it was alleged that a portion of the petition failed "to contain a concise statement of how the installation of the telephone unit interfered with the operation of the vehicle in which it was installed and thus fails to give Defendant fair notice of the claim involved." Plaintiff filed such a trial amendment. Defendant does not challenge the overruling of its special exception or the filing of the trial amendment, as such, by specific points of error directed toward the court's action. It does assert that the trial court erred in refusing to grant its motion for a continuance for the reason that permitting plaintiff to file the trial amendment effectively deprived it of time to prepare its defense to the matters raised by the amended pleading.

Matters of discovery are by their very nature pretrial devices designed to expedite and narrow the issues to be determined by a trial on the merits. The means of discovery should be utilized in a timely manner and should not be delayed until just before trial. Here, defendant waited 15 months after it was aware of the difficulties presented by plaintiff's refusal to answer certain questions, and did nothing to force plaintiff's...

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