Wilkerson v. Moore

• Decision Date: 01 March 1971
• Docket Number: No. 8103,8103
• Citation: 465 S.W.2d 382
• Parties: Bud WILKERSON, Appellant, v. Mrs. M. J. MOORE, Appellee.
• Court: Texas Court of Appeals

Page 382

465 S.W.2d 382

Bud WILKERSON, Appellant, v. Mrs. M. J. MOORE, Appellee.

No. 8103.

Court of Civil Appeals of Texas,

Amarillo.

March 1, 1971.

J. G. Souris, Vernon, for appellant.

Rancier & Davis, Gowin Davis, Wichita Falls, for appellee.

ELLIS, Chief Justice.

This is an appeal from a summary judgment in favor of Mrs. M. J. Moore, Appellee, against Bud Wilkerson, Appellant, on a farm lease agreement.

The plaintiff, Appellee herein, filed her original petition in the 46th District Court of Wilbarger County, Texas, seeking recovery against the defendant, Appellant herein, for the sum of $1,425.00 alleged to be owing to her under a certain written farm lease contract, together with alleged damages to the barn located on the premises. The defendant, Appellant herein, filed a general denial as his original answer. Subsequently, on September 4, 1969, Appellee filed her motion for summary judgment for the sum of $1,425 .00, with affidavit attached. On September 9, 1969, Appellant filed application to take oral deposition of Appellee on September 23, 1969. On November 26, 1969, Appellant filed his sworn motion to compel Appellee to answer questions on deposition in which he claimed that Appellee had refused to answer upon her attorney's advice. In this motion he further made demand under subdivision (a) of Rule 215a of the Texas Rules of Civil Procedure for costs incurred, together with attorney's fees, in requiring Appellee to answer proper questions within the purview of the discovery statutes . Also, in this motion to compel answers, Appellant alleged that Appellee was insisting upon a setting and hearing of her Motion for Summary Judgment, and Appellant prayed that action be taken by the court on his motion to compel answers prior to the setting of the hearing on the Motion for Summary Judgment to enable him to properly prepare his defense.

The Appellee's Motion for Summary Judgment was set for hearing on December 22, 1969. On December 19, 1969, Appellant filed a Motion to Delay Hearing on Appellee's Motion for Summary Judgment on the alleged grounds that depositions of Appellee were incomplete and the completion of same was necessary to perfect his affidavit and pleas in opposition to Appellee's Motion for Summary Judgment and prayed for continuance until Appellant answered questions as previously requested. It is here noted that at such time the court had not acted upon the Appellant's previously filed sworn motion to compel answers by the Appellee in the discovery proceedings. On the same date, December 19, 1969, Appellant filed his First Amended Original Answer and Cross Action. Also, on the same date, December 19, 1969, Appellant filed his Reply to Motion for Summary Judgment with opposing affidavit attached. Appellant's attorney testified that he mailed a copy of such reply motion and affidavit by certified mail on December 19, 1969, to the attorney for Appellee who testified that he had not received such copy at the time of the hearing on the Motion for Summary Judgment on December 22, 1969.

There was filed with this court a 'Transcript of Evidence' relative to proceedings had at the hearing on Appellee's Motion for Summary Judgment on December 22, 1969. This transcript of evidence sets out the various matters discussed by the trial court with the attorneys for the respective parties together with certain testimony and arguments of such attorneys regarding the filing and mailing of certain instruments and other procedural matters related to the litigation. Among other things, such transcript of evidence disclosed that, over objections by Appellant's counsel, the court did not consider the Appellant's Reply to Motion for Summary Judgment and accompanying affidavit filed on December 19, 1969, on the ground that copy thereof had not been 'served' upon or received by Appellee's counsel prior to the date of the hearing. Also, over objections by Appellant's attorney, the court overruled the Appellant's motion to compel further answers by Appellee on oral deposition. Further on December 22, 1969, Appellee's attorney filed and the court granted Appellee's Motion to Sever Appellant's Cross Action. Appellant's attorney objected to such motion and order for severance on the ground that the causes of action involving Appellant's Cross Action and Appellee's Motion for Summary Judgment were very closely interrelated and it would be proper that such causes be tried together. Also, on December 22, 1969, the court granted Appellee's Motion for Summary Judgment, and from such judgment Appellant brought this appeal.

Among the various points of error raised by Appellant is that the court erred in failing to consider Defendant's Reply Motion and affidavit in opposition to Appellee's Motion for Summary Judgment and that there exist various fact issues which preclude the rendition of a summary judgment.

The evidence shows that the Appellant's Reply Motion and affidavit were filed on December 19, 1969, a date prior to the date of the hearing on the Motion for Summary Judgment. Also, on December 19, 1969, the Appellant had filed his Motion for Postponement of Hearing on Appellant's Motion for Judgment for the purpose of...