Woodard v. Hopperstad Builders, Inc., No. 1171

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: BISSETT
• Citation: 554 S.W.2d 726
• Parties: Jimmie WOODARD, d/b/a Tu J Refrigeration, Appellant, v. HOPPERSTAD BUILDERS, INC., Appellee.
• Docket Number: No. 1171
• Decision Date: 12 May 1977

Page 726

554 S.W.2d 726 Jimmie WOODARD, d/b/a Tu J Refrigeration, Appellant,
v.
HOPPERSTAD BUILDERS, INC., Appellee. No. 1171. Court of Civil Appeals of Texas, Corpus Christi. May 12, 1977.
Rehearing Denied June 30, 1977.

Page 727

Lee Arnett, Arnett & Church, Brownsville, for appellant.

Benjamin S. Hardy, Hardy, Sharpe & Rodriguez, Brownsville, for appellee.

OPINION

BISSETT, Justice.

This is an appeal from a judgment which granted a Bill of Review and set aside a former judgment. Jimmie Woodard, d/b/a Tu J Refrigeration, hereinafter referred to as "Woodard," filed suit on sworn account against Hopperstad Builders, Inc., hereinafter called "Hopperstad," in the District Court of Cameron County, Texas, on March 29, 1971. Hopperstad timely filed a verified original answer. Hopperstad did not appear at the trial and judgment was rendered for Woodard against Hopperstad on January 3, 1972 for $6,379.84, plus attorneys' fees in the amount of $2,500.00. Hopperstad, after the time for filing a motion for new trial had expired, filed a petition for a Bill of Review. A hearing on the petition was held before the trial court, sitting without a jury. By agreement of the parties, the issues raised by Hopperstad in its petition for a Bill of Review as well as the evidence relating to the action on sworn account were presented to the trial court. The court, after having considered the issues and evidence, granted the petition for a Bill of Review and rendered judgment which decreed: 1) the judgment rendered on January 3, 1972 "is hereby set aside and held for naught"; and 2) "Jimmy Woodard, d/b/a Tu J Refrigeration have and recover naught from Hopperstad Builders, Inc." Woodard has appealed from the judgment which granted the Bill of Review and set aside the former judgment.

Hopperstad, in its petition for a Bill of Review, alleged in substance: 1) it filed a verified answer to Woodard's petition on April 8, 1971, wherein it was stated that "Woodard had been paid for all the services that he had rendered and that the work performed by him as alleged in the petition was not true"; 2) the case was set for trial for the week of November 22, 1971, with notice to all parties; 3) Thomas G. Sharpe, Jr., counsel for Hopperstad, was in trial in another case in Edinburg, Texas, on November 22, 1971, and he was advised that the case would be passed; 4) counsel for Woodard, "by some means induced the court without notice" to Hopperstad or its counsel, to specially set the case for a trial on the merits for January 3, 1972; 5) neither Hopperstad nor its counsel had any knowledge of such setting, and neither Woodard, nor its counsel, nor the Clerk of the District Court of Cameron County notified counsel for Hopperstad of the resetting; 6) counsel for Woodard caused a judgment to be rendered on January 3, 1972 with full knowledge that he had not notified Hopperstad or its counsel of the resetting, which was "deceitful and deceptive" and was done with full knowledge that the notice of special setting had not been sent to counsel for Hopperstad, as provided for in the Local Rules of Civil Procedure Rule 5(4); 7) counsel for Woodard did not notify Hopperstad or its counsel of the rendition of the judgment, nor did he send a copy thereof to either Hopperstad or its counsel; 8) the District Clerk did not mail a copy of the judgment to either Hopperstad or its counsel; 9) the failure to mail a copy of the judgment to Hopperstad or its counsel deprived Hopperstad of its right to file a motion for new trial, because the trial court had lost jurisdiction of the case before it learned of the rendition of the judgment;

Page 728

10) Hopperstad has a meritorious defense to the action brought against it by Woodard and pleaded the same in the answer which it filed in defense to that action; 11) Hopperstad was prevented from presenting any evidence in its defense to the action brought against it by Woodard since it did not receive notice of the special setting of the case, and the failure to receive the notice and to appear in court on the day appointed was not the fault of or due to the negligence of either Hopperstad or its counsel, but was due to a deliberate move on the part of the counsel for Woodard "to be deceptive"; 12) on January 3, 1972, counsel for Hopperstad was in his office at Brownsville, Texas, when the judgment was rendered; 13) the evidence introduced at the trial on January 3, 1972 will not support the judgment, "because it is not in accord with the pleadings . . . the invoices were not made to "Hopperstad Builders, Inc." ; 14) the judgment recites that the "cause was set for trial by regular setting when in truth and in fact the setting was a special setting which required notice under Local Rules . . . and by Rule 247, T.R.C.P."

It is established by the evidence the case was originally set for trial the week of November 22, 1971, with notice to all parties. Counsel for Hopperstad, Mr. Thomas G. Sharpe, Jr., however, was in trial at about the same time in another case at Edinburg, Texas. On Friday, November 19, 1971, Sharpe informed the bailiff for 197th District Court of Cameron County, Texas, where the cause was then pending, that he would be in trial in the District Court of Hidalgo County, Texas, in Edinburg, Texas on November 22, 1971, and left a note at the office of the District Judge of that Court. Sharpe, in the note, advised the judge that he would be in trial in Edinburg on November 22, 1971 and that Judge Garza (the federal judge at Brownsville) had reset "all my November cases for January, 1972. Sharpe further stated: "Since the case will be reset, I anticipate it being called at the February Docket."

At the request of Mr. Franklin T. Graham, who was then the attorney of record for Woodard, the District Court of Cameron County reset the case for trial for January 3, 1972. It was further proved that neither Graham, Woodard nor the District Clerk notified either Hopperstad or Sharpe of the resetting.

Graham testified that the trial judge instructed his bailiff to inform counsel for Hopperstad of the resetting. It was stipulated that the bailiff had no independent recollection of the matter, one way or another. Graham further testified that he did not notify Sharpe that the cause had been reset for trial on January 3, 1972, because the judge ordered the bailiff to notify him.

The trial court heard the case on the merits on January 3, 1972, in the absence of Hopperstad or its counsel. After hearing evidence, the court then rendered the aforesaid judgment against Hopperstad.

Sharpe testified that he was in his office in Brownsville, Texas, on January 3, 1972, and that he had no notice of the setting of the case for trial at any time prior to that date. He further testified that he did not learn of the rendition of the judgment until it was too late to file a motion for new trial.

At the request of Woodard, the...