Texaco, Inc. v. Central Power & Light Co.
| Decision Date | 28 February 1995 |
| Docket Number | No. 04-93-00376-CV,04-93-00376-CV |
| Citation | 897 S.W.2d 854 |
| Parties | TEXACO, INC., Appellant, v. CENTRAL POWER & LIGHT COMPANY, Appellee. |
| Court | Texas Court of Appeals |
W. Wendell Hall, Fulbright & Jaworski, San Antonio, Joy M. Soloway, Fulbright & Jaworski, Houston, for appellant.
G. Don Schauer, Pipitone, Schauer, Simank & Ledbetter, Corpus Christi, Russell H. McMains, Stacy Keaton, Law Offices of Russell H. McMains, Corpus Christi, Baldemar Gutierrez, Law Offices of Baldemar Gutierrez, Alice, for appellee.
Before CHAPA, C.J., and RICKHOFF and STONE, JJ.
Appellant Texaco, Inc. brings this appeal by writ of error from an adverse judgment on appellee Central Power & Light Co.'s (C.P.L.) claim for indemnity. The threshold issue to be determined is whether we have jurisdiction over this appeal. We conclude that we do not.
The facts necessary to determine our jurisdiction are not in dispute. Eduardo Espinoza and his wife, plaintiffs below, sued Texaco, a Texaco employee, and C.P.L. for injuries Eduardo sustained while attempting to repair an electrical problem on property leased by Texaco. C.P.L. filed a cross-claim for indemnity against Texaco, alleging that it was entitled to full indemnification from Texaco pursuant to a Public Utility Commission tariff. Texaco answered the allegations of the plaintiffs and the cross-action of C.P.L. and participated fully in all pretrial matters. The case was called for trial on the morning of October 19, 1992. Each party appeared and announced "ready" 1 on all matters before the court. After a brief discussion, the attorneys were excused to confer on their pretrial motions. Jury selection began later that same afternoon. The statement of facts reflects appearances at jury selection and the remainder of the trial only by counsel for plaintiffs and counsel for C.P.L., with the exception of October 20, 1992.
On October 20, 1992, the second day of trial, an attorney for Texaco appeared in court during a recess to recite into the record Texaco's settlement agreement with plaintiffs. The cross-claim against Texaco by C.P.L. was not addressed in the recitation of the settlement, and, after the court approved the settlement, Texaco's counsel departed. 2
The jury was then brought back into the courtroom and the trial resumed with only counsel for the plaintiffs and C.P.L. present. During the trial, C.P.L. made a motion for the court to take judicial notice of the Public Utility Commission Tariff which would allow C.P.L. full indemnification from Texaco. Texaco was notified of the motion and failed to respond. At the end of the trial, the jury returned a verdict finding negligence in the following percentages: Texaco--50 percent; C.P.L.--20 percent; Eduardo Espinoza--30 percent. The judgment recites that Texaco and C.P.L. are jointly and severally liable for plaintiffs' damages, with a credit for Texaco's settlement with plaintiffs. The judgment further recites that the court had taken judicial notice of the Public Utility Commission Tariff and that C.P.L. is entitled to full indemnification from Texaco. Texaco appeals by writ of error.
The requirements for bringing an appeal by writ of error are: (1) the appeal must be brought within six months after the judgment was signed; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error must be apparent from the face of the record. General Elec. Co. v. Falcon Ridge Apts., 811 S.W.2d 942, 943 (Tex.1991); Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985); Brown v. McLennan County Children's Protective Servs., 627 S.W.2d 390, 392 (Tex.1982). Each of these elements is mandatory and jurisdictional. Robertson v. Hide-A-Way Lake Club, Inc., 856 S.W.2d 841, 843 (Tex.App.--Tyler 1993, no writ). The only element here in dispute is whether Texaco participated in the actual trial to an extent that it is barred from appeal by writ of error.
"No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the court of appeals through means of writ of error." TEX.R.APP.P. 45(b). "Actual trial" is defined "as ordinarily understood to be the hearing in open court, leading up to the rendition of judgment, on the questions of law and fact." Stubbs v. Stubbs, 685 S.W.2d 643, 644-45 (Tex.1985); see also Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097 (1941). The extent of participation required is a matter of degree. Stubbs v. Stubbs, 685 S.W.2d at 645; Robertson v. Hide-A-Way Lake Club, Inc., 856 S.W.2d at 844; In re Estate of Wallock, 846 S.W.2d 536, 540 (Tex.App.--Corpus Christi 1993, no writ).
When determining whether a party is precluded from bringing an appeal by writ of error due to participation in the actual trial, a court must bear in mind the purpose for that limitation.
The statute was intended to cut off the right of appeal by writ of error of those who participate in the hearing in open court in the trial that leads to final judgment. It was not intended to cut off the right of those who discover that a judgment has been rendered against them after the judgment has been rendered, and who participate only to the extent of seeking a new trial.
There was good reason for making a distinction between those who participate in the hearing in open court, leading up to the rendition of judgment, and those who do not so participate. The statute allows a shorter period of time for the presentation of an appeal and a longer period for the suing out of a writ of error. The legislative purpose was to take away the right of appeal by writ of error from those who should reasonably use the more speedy method of appeal. Those who participate in the trial leading up to the rendition of judgment are familiar with the record, and are therefore in position to prepare for appeal on short notice; whereas, those who do not so participate in the actual trial, and are therefore unfamiliar with the record, may need additional time in which to familiarize themselves with the record.
Lawyers Lloyds of Texas v. Webb, 152 S.W.2d at 1097-98 (citations omitted).
As this court has previously noted, "the supreme court's definition of participation 'in the actual trial of the case,' despite its apparent clarity, has not furnished a definitive guide." Mata v. Ruiz, 640 S.W.2d 415, 417 (Tex.App.--San Antonio 1982, no writ). A review of a variety of cases is instructive.
In Tramco Enter., Inc. v. Independent Am. Sav. Ass'n, 739 S.W.2d 944 (Tex.App.--Fort Worth 1987, no writ), appellant's intervention was dismissed without notice of the hearing or the dismissal. 3 The appellate court stated, "Appearing, answering, filing pleadings, seeking various forms of relief and participating in preliminary hearings is not participating in the actual trial that produced the judgment appellant now attacks." Id. at 947 (emphasis in original). The court concluded that appellant had not participated in the trial. See also In re Van Hersh, 662 S.W.2d 141, 144 (Tex.App.--Amarillo 1983, no writ); Phillips Petroleum Co. v. Bivins, 423 S.W.2d 340, 342 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.) (filing an answer is not participation).
"The mere physical presence of a party in the courtroom during a trial does not constitute participation sufficient to preclude writ of error." Allen v. Allen, 647 S.W.2d 356, 361 (Tex.App.--El Paso 1982, no writ); see also Collins v. Collins, 464 S.W.2d 910, 912 (Tex.Civ.App.--San Antonio 1971, writ ref'd n.r.e.); Specia v. Specia, 292 S.W.2d 818, 819 (Tex.Civ.App.--San Antonio 1956, writ ref'd n.r.e.). Appellant in Allen had petitioned the court for a writ of habeas corpus to secure the return of her son. The boy's father filed a motion to modify custody. Appellant managed to obtain possession of the boy and left the state with him. Her attorney appeared before the court to take a nonsuit in the habeas corpus proceeding. The court disallowed the nonsuit and then summarily entered an order giving custody to the father. The court of appeals held that appellant did not participate in the trial. Her attorney appeared only for purposes of the motion to nonsuit. As to the modification of custody, he was no more than a mere spectator in the courtroom. See Allen, 647 S.W.2d at 360-61.
While mere presence in the courtroom does not constitute participation in the actual trial, giving testimony, even though on behalf of another defendant, does. See Mata v. Ruiz, 640 S.W.2d at 417.
Appellant in Thacker v. Thacker, 496 S.W.2d 201 (Tex.Civ.App.--Amarillo 1973, writ dism'd), sought to appeal by writ of error an adverse summary judgment. The court began its analysis of jurisdiction by noting that the extent of participation in the actual trial that precludes review by writ of error "appears to be one of degree" and that writ of error review is not barred by filing an answer or a motion for new trial. Id. at 203. It is, however, barred by participating in the actual trial that leads to a final judgment or by excepting to the judgment in open court. Id. The court stated:
In brief, since all party and counsel participation necessary to prepare and present the summary judgment situation is required to be concluded prior to the day set for hearing the motion, and no oral testimony is permitted at the hearing, there is no rule provision or necessity for party or counsel participation at the hearing granting the motion for summary judgment.
Id. at 204 (footnote omitted).
The court concluded that, although appellant was not present for the summary judgment hearing, her participation was completed prior to that time. In accordance with the rationale set forth in Lawyers Lloyds,
appellant...
To continue reading
Request your trial
-
Serna v. Webster
...844; In re Estate of Wallock, 846 S.W.2d 536, 540 (Tex.App.--Corpus Christi 1993, no writ). In Texaco, Inc. v. Central Power & Light Co., 897 S.W.2d 854 (Tex.App.--San Antonio 1995, writ req'd), this court held that the appellant's announcement of "ready" at the beginning of the trial was p......
-
Mays v. Perkins, 01-95-01395-CV
...cross-claim. Id. The San Antonio Court of Appeals dismissed Texaco's appeal by writ of error. Texaco, Inc. v. Central Power & Light Co., 897 S.W.2d 854, 862-63 (Tex.App.--San Antonio 1995). That court held Texaco had "participated" in the trial because the parties announced "ready for trial......
-
Texaco, Inc. v. Central Power & Light Co.
...the settlement agreement to the court, it was precluded from advancing an appeal by writ of error. Texaco, Inc. v. Central Power & Light Co., 897 S.W.2d 854 (Tex.App.--San Antonio 1995). The supreme court reversed our holding, finding that Texaco could properly appeal by writ of error, and ......
-
Texaco, Inc. v. Central Power & Light Co.
...appeals dismissed Texaco's appeal, holding that Texaco participated at trial and therefore was disqualified to appeal by writ of error. 897 S.W.2d 854. We disagree. We reverse the judgment of the court of appeals and remand the cause for consideration of Texaco's points of Texaco hired an i......