Watson v. Godwin

• Decision Date: 19 February 1968
• Docket Number: No. 7777,7777
• Citation: 425 S.W.2d 424
• Parties: Wayne WATSON, Appellant, v. Helen M. GODWIN, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 424

425 S.W.2d 424

Wayne WATSON, Appellant, v. Helen M. GODWIN, Appellee.

No. 7777.

Court of Civil Appeals of Texas Amarillo.

Feb. 19, 1968.

Rehearing Denied March 25, 1968.

Harris E. Lofthus, Amarillo, for appellant.

Underwood, Wilson, Sutton, Heare & Berry and Harlow Sprouse, Amarillo, for appellee.

CHAPMAN, Justice.

This is an appeal from a summary judgment rendered for Mrs. Helen Godwin, defendant below, against plaintiff-appellant, Wayne Watson.

Before considering any of the points it is necessary to give some of the history of the case. The parties will be referred to as in the court below.

Plaintiff first filed his suit against defendant in Cause No. 44,113--A in the 47th District Court of Potter County on March 14, 1966. A plea of privilege was filed asking for a change of venue to Randall County. No controverting affidavit having been filed, the case was transferred to Randall County on January 24, 1967, and became Cause No. 7821 in the District Court of that county. A non-suit was later taken in the case on February 22, 1967, the day it was set for hearing on a motion for summary judgment. The present case was filed on the same day in the District Court of Randall County as Cause No. 7871.

The thesis of plaintiff's contention in his first point is that the only summary judgment components that may be considered in the case is his unsworn petition in Cause No. 7871 and defendant's unsworn answer to such petition. Therefore, fact issues were raised . That contention is not briefed and the argument in the point to the effect that the only instruments proper for the court to consider were those two pleadings is contrary to what we believe the record shows. The only authority whatever cited under the point is Rule 166--A, V.A.T.R., commonly referred to as the summary judgment rule. The quote therefrom shows no legal authority for the contention made under the point, i.e., plaintiff's petition and defendant's answer thereto are the only summary judgment components proper for the court to consider.

Rule 418, V.A.T.R., provides the brief of appellant shall contain, inter alia, A discussion of the facts and The authorities relied upon as requisite to maintain the point at issue. ¹ Numerous courts have held that where points are not briefed by appellant they may be assumed as waived. Whitson Company v. Bluff Creek Oil Company, Tex.Civ.App., 278 S.W.2d 339, affirmed 156 Tex. 139, 293 S.W.2d 488; Weatherred v. Kiker, Tex.Civ.App., 357 S.W.2d 182 (N.R.E .); Butterfield Sales Company v. Armstrong, Tex.Civ.App., 278 S.W.2d 194 (N.R.E.); Grady v. Dallas Railway & Terminal Company, Tex.Civ.App., 278 S.W.2d 282 (N.R.E.); Stanford v. Brooks, Tex.Civ.App., 298 S.W.2d 268 (N.W.H.); Pride v. Pride, Tex.Civ.App., 318 S.W.2d 715 (N.W.H.); Hall v. Hall, Tex.Civ.App., 352 S.W.2d 765 (N.W.H.); Kirkman v. Alexander, Tex.Civ.App., 280 S.W.2d 365 (N.R.E.); Kitchens v. Kitchens, Tex.Civ.App., 372 S.W.2d 249 (writ dismissed).

That the citation of authorities constitutes one of the components of a brief has long been recognized by our courts, even before the promulgation of the above stated rule. McClanahan v. Cook, 401 S.W.2d 352 (Tex.Civ.App. Amarillo, 1966, no writ).

Even before the adoption of our present Rules of Civil Procedure, when propositions were required instead of points, the Supreme Court of Texas in Shanks v. Carroll, 50 Tex. 17, 20 said:

'The brief contemplated and required by the rules should, in short, embrace nothing but the propositions--set forth clearly, distinctly, and separately--relied upon for the reversal of the judgment, the matters in the record pertinent to the proper determination of each proposition, And a citation simply of the authorities relied upon to maintain the validity or correctness of the propositions thus asserted.' See also Haley v. Davidson, 48 Tex. 615, 618.

Plaintiff having nowhere cited any authorities nor discussedany facts in the point to the effect that the only instruments proper for the court to consider were the two stated pleadings, we may assume the point is waived. However, his contention will be discussed in other points.

In his second point plaintiff asserts: 'The court erred in granting summary judgment because the instruments presented in support of the motion and on which the motion was based were not the pleadings on file in this suit.' In his third point plaintiff contends there is reversible error in the court's judgment because the deposition presented as an exhibit by defendant in support of her motion for summary judgment was a deposition taken in a prior suit. We shall consider the points together.

As may readily be seen from the second point urged, the contention for reversal there is not that '* * * The instruments presented in support of the motion and on which the motion was based' Fail to show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is not entitled to a judgment as a matter of law, in the purview of Rule 166--A, V.A.T.R. To the contrary, the basis for reversal in the point is that 'the instruments presented in support of the motion and on which the motion was based were not the pleadings on file in this suit.'

Under the record here the pleadings would have been material if they were the only summary judgment components. They are actually immaterial because the only 'evidence' as distinguished from pleading to show an alleged cause of action was plaintiff's testimony in his deposition to the effect that the $100,000.00 he was seeking from defendant was based on a consideration of marriage. Therefore, we must consider if the deposition was properly before the trial court for consideration when the summary judgment appealed from was granted.

By requests for admissions made by defendant on March 10, 1967, and answered on March 17, 1967, plaintiff judicially admitted he had given his sworn testimony in answers propounded to him on December 7, 1966, while the cause was No. 44,113--A pending in the 47th District Court of Potter County; that such sworn testimony was transcribed and reduced to writing by Wm. K. Davis, the court reporter and notary public of Potter County who administered the customary oath and before whom plaintiff's sworn testimony was given; that after being reduced to writing the original of the deposition was filed in Cause No. 7821 in Randall County; and That when he gave his deposition he was sworn to tell the truth, the whole truth and nothing but the truth and did tell the truth, the whole truth and nothing but the truth in answer to the interrogatories propounded in the deposition.

By request for admission No. 4 in defendant's request for admissions plaintiff was asked if a true and correct copy of the deposition had been filed with the court's papers in Cause No. 7871 in the District Court of Randall County in connection with a motion for summary judgment then pending in that cause. To such question he answered he could not truthfully admit nor deny because he had not inspected the clerk's file in the case.

A motion was made by defendant under Rule 169, V.A.T.R. to have the court deem the request as admitted. Such motion was granted by the court, and we think properly so. '* * * a party may not evade the rule by merely saying that he does not have sufficient information to either admit nor deny the matters requested when he, by resorting to means available to him, can secure the facts inquired about. This provision of Rule 169 is not a frivolous one, nor one that should be treated lightly and thereby overcome the salutory purpose of the rule.' McPeak v. Tex.Dept. of Public Safety, 346 S.W.2d 138 (Tex.Civ.App.-Dallas, 1961, no writ). Plaintiff was in position to ascertain the answer to the fourth interrogatory in the requests for admissions by the simple expedient of inspecting the records on file or by making such inquiry as would have revealed the fact that a true and correct copy of the subject deposition had been filed with the court's papers in the cause in connection with a motion for summary judgment.

We believe the court properly granted the motion to have itdeem the request as admitted. McPeak v. Tex. Dept. of Public Safety, supra; Montgomery v. Gibbens, 245 S.W.2d 311, 315 (Tex.Civ.App.-Eastland, 1951, no writ). Such request being incorporated by reference in the request for admissions, it was properly before the trial court on the summary judgment hearing. Additionally, the deposition was identified by an affidavit attached to defendant's motion for summary judgment and in such form as that the identifying statements made it admissible in evidence in conformity with Rule 166--A.

All formalities were waived by agreement before the deposition was taken, and under oath plaintiff so admitted, and recognized he was testifying under oath. The deposition was, therefore, properly before the court as a party admission. McLean v. Hargrove, 139 Tex. 236, 162 S.W.2d 954; Branch v. Jean, 320 S.W.2d 427 (Tex.Civ.App.-Eastland, 1959, writ ref'd n.r.e.). Furthermore, under the circumstances of this record the deposition could be considered by the trial court in the summary judgment hearing as an affidavit within the purview of Rule 166--A. Green v. American General Ins. Co., 354 S.W.2d 616 (Tex.Civ.App.-Fort Worth, 1962, writ ref'd n.r.e.).

The original pleadings from the former suit were also identified by an affidavit filed with the motion for summary judgment, attached thereto, served therewith, incorporated by reference into such affidavit, and were sworn to be true copies thereof by the attorney qualified to testify. But as heretofore stated, we consider them immaterial here.

Appellant's position is that the components described were not proper to be considered in the summary judgment hearing; that as heretofore stated, the unsworn petition in the present suit and defendant's unsworn answer thereto were the only summary judgment...