McDaniel v. Hale , 893 S.W.2d 652 ( 1995 )

REYNOLDS, Chief Justice,

concurring.

I join in the court’s judgment of reversal and reinstatement. Because I do not embrace some of the expressions and analyses in the lead opinion, I substitute these comments.

The resolution of the appeal, though arising from proceedings which departed from accepted bill of review principles, is governed by well established principles of law. In light of the extensive background contained in the lead opinion, it suffices to state that appellees, who fully participated in the original trial, filed a prejudgment motion for new trial which was overruled by operation of law after the judgment was signed without notice to them. They predicated their bill of review upon the failure of the court clerk to send the required notice of the signing of the final judgment. See Tex.R.Civ.P. 306a(3). Then, they were required to show the loss of an opportunity to appeal and, at least ‘prima facie, a meritorious ground of appeal, i.e., that the judgment might, and probably would, have been reversed, and that their failure to appeal was not due to any fault or negligence on their or their attorney’s part. Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 245-46 (Tex.1974).

In permitting a trial on appellees’ bill of review, the trial judge, who presided at the original trial, made a pretrial finding that the damages awarded by the jury were excessive. Appellant did not object to the absence of pretrial prima facie proof of a meritorious ground of appeal, and that issue is not before us. Tex.RApp.P. 52(a).

In the bill of review trial, the jury failed to find that the failure of appellees to urge their motion for new trial was not due to any fault or negligence on the part of them or their attorney. The trial court disregarded the answer, implicitly finding that the jury’s answer had no support in the evidence or that the inquiry was immaterial. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). There is no contention that the inquiry was immaterial and, by force of its bill of review judgment, the trial court found the absence of fault or negligence as a matter of law. The court’s finding is correct, appellees submit, because they established the absence of negligence as a matter of law.

The evidence shows the proposed judgment was submitted to the trial judge with the request that it be signed by a certain date unless there was an objection, and a copy of the submission was sent to appellees’ attorney. Appellees filed their motion for new trial later the same day. In response to the requested signing of the judgment, appel-lees’ attorney asked the trial judge to postpone signing the judgment until he could hear the motion for new trial; and the judge, who had not received the proposed judgment nor knew of the requested signing, said the motions for new trial and judgment would be heard at the same time. Appellees’ attorney made no objection to the judgment, and the judge signed it two days after the date it was requested to be signed. The district clerk did not notify either appellees or their attorney that the judgment had been signed.

Although not objecting to the proposed judgment, appellees’ attorney did not evidence that he made any effort to determine whether the judgment had been signed on or after the date of its requested signing. Testimony on the question whether it was customary or reasonable for an attorney to check with the clerk to determine the status of pending motions was conflicting. Appel-lees’ attorney and two other attorneys, one of whom was his partner at the time of the lawsuit and the other one of whom was employed as local counsel, concluded that appel-lees’ attorney was not negligent. There was testimony that appellant’s attorney had no duty to notify appellees’ counsel of the signing of the judgment. A former Supreme Court justice, who had served as a district judge, being given a hypothetical situation embracing the submission of the proposed judgment and motion for new trial, expressed the opinion that he would have signed the judgment if he received no objection, and he would have expected the opposing attorney to expect that the judgment would be signed. The justice was not otherwise asked to express an opinion about the conduct of any attorney under the exact facts revealed by the testimony.

Then, under this record, a fact issue as to fault or negligence was presented, Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d at 246, and the court was not authorized to disregard the jury’s answer. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 274 (1958). Restored, the jury’s answer constituted a verdict for appellant unless the cross-point of appellees, by which they challenge the factual sufficiency of the evidence to support the answer, is sustained. Id. 314 S.W.2d at 276-77.

In according the jury its proper role to judge the credibility of the witnesses and the weight to be given to their testimony, I cannot say that the jury’s refusal to find appel-lees’ failure to urge its motion for new trial was not due to any fault or negligence of them or their attorney is against the great weight and preponderance of the evidence. Consequently, I would agree with appellant that appellees have failed to satisfy this requirement for a bill of review.

Moreover, it is settled that the final judgment should not be disturbed unless appel-lees could show that the judgment might, and probably would, have been reversed had they not lost the opportunity to appeal. PetroChemical Transport, Inc. v. Carroll, 514 S.W.2d at 245-46. The burden remained with appellees although, as earlier noticed, there was no objection to the pretrial finding of excessive damages by the trial judge, who presided at the first trial, and particularly there was no objection that the judge did not then have for review the statement of facts, which has been furnished as a part of the appellate record. In an attempt to validate the judge’s finding, appellees’ verbatim statement, with their references to the record eliminated, is:

The evidence established that McDaniel incurred medical bills in the amount of $7,068.00; that McDaniel was off work for approximately six (6) months following the accident from June of 1983 until January of 1984; and that from January 1984 until the time of the first trial, McDaniel consistently worked at jobs requiring hard labor, as he did prior to the accident. The evidence further established that, after returning to work in January of 1984, McDaniel did not seek any medical attention for two years, until just prior to the date his doctor was scheduled to give his deposition. Faced with this evidence, the jury awarded actual damages in the amount of $82,068.00.

However, in addition to the evidence of medical expenses of $7,068, the jury was faced with other evidence, from which it determined that appellant was entitled to $12,500 for past, and $12,500 for future, physical pain and mental anguish; $12,500 for past, and $12,500 for future, loss of earning capacity; and $12,500 for past, and $12,500 for future, physical impairment, a total of $82,068. Other than their quoted statement, appellees have not undertaken to explain how the evidence fails to support the jury’s findings.

Then, given the record from the first trial, I agree that appellees have not shown the original judgment might, and probably would have been, reversed if they had not lost the opportunity to appeal from it. Accordingly, I agree appellees have failed to satisfy this requirement for a bill of review.

I am authorized to add that Justice BOYD, who joins in the Court’s judgment by which the bill of review judgment is reversed and the original judgment is reinstated, agrees with these comments.