Carrizales v. Wal-Mart Stores, Inc.

794 S.W.2d 129, 1990 Tex. App. LEXIS 2296, 1990 WL 130243
CourtCourt of Appeals of Texas
DecidedAugust 8, 1990
DocketNo. 2-89-095-CV
StatusPublished
Cited by3 cases

This text of 794 S.W.2d 129 (Carrizales v. Wal-Mart Stores, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carrizales v. Wal-Mart Stores, Inc., 794 S.W.2d 129, 1990 Tex. App. LEXIS 2296, 1990 WL 130243 (Tex. Ct. App. 1990).

Opinion

OPINION

LATTIMORE, Justice.

Appellant, Andrew Carrizales, appeals the trial court’s judgment modifying its previous judgment and withdrawing the 11.55 million dollar sanction it had levied against Wal-Mart for discovery delays.

We affirm.

The facts of the underlying case are not in dispute. This is a limited appeal for the purpose of adjudicating a procedural point with regard to the trial court’s power to withdraw its previous judgment during its plenary period.

This appeal arises out of an order imposing 11.55 million dollars in sanctions for Wal-Mart’s failure to produce Mr. Walton for deposition. This order was entered by the 352nd District Court, Judge John Street presiding. Thereafter, the Honorable Bruce Auld assumed the bench of the 352nd District Court and withdrew the 11.-55 million dollar sanction against Wal-Mart.

Appellant brings to this court sixty-five points of error which he wishes us to consider in our disposition of this case.

Fortunately, there are threshold inquiries which are dispositive of the case. The issues before this court are whether the trial court abused its discretion in withdrawing the monetary sanctions against Wal-Mart and whether the sanctions accrued during the period when this court’s order of stay was in effect.

[130]*130Neither party contends that the trial court did not have discretion to award or not award sanctions against Wal-Mart. Nor do they contend action taken by the trial court was outside of its plenary jurisdiction. The crux of this case is centered upon the fact that one judge was presiding over the court when the sanctions were granted and another judge was presiding when the sanctions were removed.

Appellee contends that the successor judge was free to set aside the sanction order made by his predecessor judge. In support of this contention it cites Downwind Aviation, Inc. v. Orange County, 760 S.W.2d 336 (Tex.App.—Beaumont 1988, writ denied). We do not find this authority helpful. Downwind does not deal with setting aside an enforcement order for monetary sanctions. Rather, the visiting judge in Downwind made a ruling entirely consistent with the previous ruling from that court. Additionally, that judge only acted after fully hearing the last amended motion for sanction of the plaintiff. Id. at 338. However, the fact that Downwind does not apply will not save appellant. We find appellant’s authority equally inapplicable. Appellant argues that even though the trial court undeniably had plenary jurisdiction, its authority to act is contingent on a type of modified appellate jurisdiction standard.

Appellant contends that TEX.R.CIV.P. 329 must be read in light of rule 320 and the review standard of “for good cause” must be cloned from rule 320 and grafted to rule 329. Appellant draws our attention by analogy to Sneed v. Martin, 292 S.W.2d 891 (Tex.App.—Dallas 1956, no writ). Our review of this case did not reveal the modified standard which appellant seeks this court to impose. The court there observed:

Rule 166 recognizes the fundamental rule that the district judge has the inherent right to change or modify any interlocutory order or judgment down to the time the judgment on the merits in the case becomes final. As stated in 25 Tex. Jur. 549, 550, Judgments, sec. 153:
“Interlocutory judgments are within the control of the court and may be set aside even at a term subsequent to that of their rendition.”
In the same volume at page 520, Judgments, sec. 127, the rule with reference to final judgments is stated that the authority of the court thereon continues until the term ends. Our present court rules have not changed these inherent powers of the court.

Id. at 894. We find that this case supports appellee’s contention that Judge Auld had the absolute right to withdraw the order of sanction, for the rule itself is plain:

RULE 329b. TIME FOR FILING MOTIONS
The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 316) in all district and county courts:
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(d) The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.

TEX.R.CIV.P. 329b.

Our finding is supported by TEX.R. CIV.P. 18 which deals with when a judge dies during the term, resigns, or is disabled. This rule provides in pertinent part:

If a successor to such judge shall qualify and assume office during the term, or if a judge be transferred to said district from some other judicial district, he may continue to hold said court for the term provided, and all motions undisposed of shall be heard and determined by him, and statements of facts and bills of exception shall be approved by him. If the time for holding such court expires before a successor shall qualify, ... such judge shall have power to act thereon at the succeeding term, or on an earlier day in vacation, on notice to all parties to the motion, and such orders shall have the same effect as if rendered in term time.

TEX.R.CIV.P. 18 (emphasis added). We think that it would be logical, that had the Supreme Court desired that a successor [131]*131judge be treated differently than his predecessor, or have different powers, they would have indicated the extent of the successor judge’s authority here. Absent a rule or other precedent which indicates that the successor judge is unauthorized to act or can only act under a different standard, no such ruling will be made here today.

Turning to the issue of whether the monetary sanctions accrued during the period when this court’s order to stay the proceedings below was in effect, it is un-controverted that at the time this court entered its order staying the proceedings below, appellee had five days remaining to comply with Judge John Street’s order before sanctions would begin accruing. The order can be found in the record. This order is pursuant to Wal-Mart’s petition for writ of mandamus. It is dated the twenty-third day of November, 1988, and signed by Justice Hal M. Lattimore. It reads in pertinent part:

It having come to this court’s attention that a deposition of Sam Walton is ordered for November 28, 1988, in the cause of Andrew Carrizales v. Wal-Mart Stores, Inc. and Jerry Rand individually, cause No. 352-104470-87, filed in the 352nd District Court of Tarrant County, Texas, it is ORDERED that the trial court’s November 18, 1988 Order scheduling this deposition and imposing sanctions is immediately stayed.

The issue now brought to this court is: did this order actually stay the monetary sanctions from accruing?

We hold that it did.

Appellant brings to us an impressive list of authority through which he argues by analogy that our order staying the sanctions is similar to a supersedeas bond.

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Cite This Page — Counsel Stack

Bluebook (online)
794 S.W.2d 129, 1990 Tex. App. LEXIS 2296, 1990 WL 130243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carrizales-v-wal-mart-stores-inc-texapp-1990.