Texaco Inc. v. Joffrion

• Decision Date: 18 December 1962
• Docket Number: No. 7446,7446
• Parties: TEXACO INC., Appellant, v. Buford JOFFRION, Appellee.
• Court: Texas Court of Appeals

Page 827

363 S.W.2d 827

TEXACO INC., Appellant, v. Buford JOFFRION, Appellee.

No. 7446.

Court of Civil Appeals of Texas, Texarkana.

Dec. 18, 1962.

Rehearing Denied Jan. 15, 1963.

William P. Gibson, Wallace G. Malone, Dallas, Long, Strong, Jackson & Strong, Carthage, for appellant.

Tom Bankhead, T. G. Davis, Carthage, for appellee.

CHADICK, Chief Justice.

This is an action by a surface lessee against the mineral lessee of an 844.3 acre tract of land, to recover for the diminution in the value of a surface lease caused by the mineral lessee (1) negligently damaging and (2) using more of the surface of the tract than was reasonably necessary in the production of minerals. A jury verdict awarded the surface lessee $3,300.00, and the judgment on the verdict is affirmed.

The appellee, Buford Joffrion, moved to dismiss this appeal because the appellant, Texaco Inc., failed to file its brief within thirty days after April 26, 1962, the date the transcript and statement of facts were filed in this court. Texaco belatedly tendered a brief on June 9, and requested leave to file it June 11, 1962, the sixteenth day following the date the brief should have been filed. At the time of the motion and tender, argument and submission of the appeal had been set for September 18, 1962.

The motion was sworn to and offered the facts contained in this statement to excuse its delay, to-wit:

'Since the date the transcript and statement of facts were filed in this Court his attorney has had the most hectic busy time he has had in his five years with Texaco Inc. The acquisition of the TXL Oil Corporation was just in its concluding stages. This attorney had to attend the taking of depositions in a damage suit filed against Texaco on two different occasions; the depositions were taken by commission and not by agreement.

'This attorney represented Texaco in a Rule 37 hearing for a special permit which was vigorously contested by Humble Oil & Refining Company.

'Another damage suit against Texaco Inc., in the sum of $60,000.00, in which this attorney is handling the defense for Texaco Inc., was set for trial June 15, 1962, at Montague, Texas; however, this attorney has now arranged with plaintiff to have that lawsuit dismissed.

'The other attorney in this attorney's office, Mr. Wallace G. Malone, although appearing as an attorney of record, has not participated in this lawsuit, did not attend the trial, has not worked on any of the pleadings, and did not assist in the preparation of appellant's brief. Mr. Malone has been busy in the trial of a lawsuit in Tyler, Texas, in attending in the taking of depositions in Oklahoma City, Oklahoma, and has handled other litigation during this period and is not familiar with this lawsuit.

'As stated before, the past six weeks have been the busiest this attorney has ever been since his employment by Texaco Inc. I have been working nights and yet it was still not possible to get this brief filed within the 30-day period.'

Joffrion does not claim that tardy filing of the brief will do him material injury, but insisted the wording of Rules 414 and 415 requires the appeal to be dismissed because Texaco failed to show cause excusing delay. Rule 414 obligates an appellant to file a brief in the Court of Civil Appeals within thirty days after the filing therein of the transcript and statement of facts, but provides that then good cause is shown for so doing, the Court of Civil Appeals may grant either or both parties further time for filing their respective briefs. Rule 415 says:

'When the appellant has failed to file his brief in the time prescribed, the appellant court may dismiss the appeal for want of prosecution, unless good cause is shown for such failure and that appellee has not suffered material injury thereby. The court, may, however, decline to dismiss the appeal, whereupon it shall give such direction to the cause as it may deem proper.'

Examination of the excuse offered by Texaco shows that counsel for the appellant was engaged in the routine work of a busy lawyer during the time attention should have been given this appeal. By choice or neglect counsel favored other matters over preparation and filing of a brief in this case. One of the elements of good cause is the impact of some event beyond the immediate control of the litigant. Mere forgetfulness, neglect, or other pressing work can not excuse compliance with the briefing rules. Good cause for delay is not shown.

The question presented by this situation is whether or not this appeal should be dismissed because Texaco did not timely file its brief, when no material injury has or will be suffered by Joffrion. The force of precedent obliges a negative answer. The source of Rule 415 is Rule 39, 'Rules for the Courts of Texas', promulgated by the Supreme Court of Texas in 1877. Ruly 39 was amended, and in substance made applicable to Courts of Civil Appeals by revision in 1892 and again in 1921, evolying finally to its present form, as quoted above. 2 Texas Law Review, p. 30; and 'Author's Comment', and other data on source under Rule 415, Vernon's Ann.Tex.Rules. At the turn of the century the Supreme Court decided that the rule as it then existed did not require a dismissal because an appellant, without good cause, failed to timely file a brief it the appellee was not materially injured by a tardy filing. San Antonio & Aransas Pass Ry. Co. v. Holden, 93 Tex. 211, 54 S.W. 751. The Holden interpretation has not been overruled and is still applicable. 2 Tex.Law Rev., p. 53, and 5 Tex.Law Rev., p. 74. Appellee's motion to dismiss is overruled.

Another question of briefing procedure must be decided. Joffrion objects to consideration of the points of error in Texaco's brief because the wording of the points bases them squarely upon the trial court's alleged error in overruling appellant's motions for instructed verdict. Twenty-one of Texaco's twenty-two points of error began with this phrase: 'The court erred in overruling defendant's motion for instructed verdict made at the time plaintiff rested and at the close of all the evidence because * * *'. The twenty-second point did not follow this word pattern. In the trial court, when Joffrion completed introduction of testimony and rested, and again at the conclusion of all testimony, Texaco moved for an instructed verdict; both motions were denied. After jury verdict, Texaco moved for judgment non obstante veredicto; this motion was denied, too. Texaco did not file a motion for new trial. In support of his objection Joffrion cites Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, where at page 891 it is said: 'A point of error cannot be based upon a motion for instructed verdict. To form the basis of a point of error, grounds in a motion for an instructed verdict must be carried forward as assignments of error in a motion for new trial.'

The objections would be satisfied by rewording the points to refer to the motion non obstante veredicto. The liberal rebriefing procedures available to Texaco would permit it to amend its brief. Rules 422, 429, 431 and 437. Delay would be the net result of sustaining Joffrion's objections. Furthermore, Texaco's point of error twenty-two is not subject to the objection, and is a reiteration of the errors alleged in the preceding twenty-one points. In addition, no difficulty is encountered in understanding Texaco's complant, which is the absence of evidence to support the various adverse findings of fact made by the jury. The objection is overruled.

The jury found that Texaco used more lands in its drilling and producing operations than was reasonably necessary, and that such use was a proximate cause of the diminution in value of Joffrion's surface leasehold estate. In this...