Dodson v. Stevens Transport

776 S.W.2d 800, 1989 Tex. App. LEXIS 2395, 1989 WL 107971
CourtCourt of Appeals of Texas
DecidedAugust 31, 1989
Docket05-88-01019-CV
StatusPublished
Cited by11 cases

This text of 776 S.W.2d 800 (Dodson v. Stevens Transport) 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
Dodson v. Stevens Transport, 776 S.W.2d 800, 1989 Tex. App. LEXIS 2395, 1989 WL 107971 (Tex. Ct. App. 1989).

Opinions

HOWELL, Justice.

At the outset of this summary judgment appeal, we must decide a jurisdictional question. Appellant Glenda Dodson seeks to prosecute this appeal based upon her timely filed affidavit of inability to pay costs. Appellee Stevens Transport seeks dismissal of this appeal contending that appellant failed to notify the court reporter of the filing of her affidavit. See TEX.R. APP.P. 40(a)(3)(B). Under the peculiar facts of this case, we hold that any such failure was immaterial.

We reiterate that this is a summary judgment appeal. Appellant has not filed a statement of facts, nor can we find any indication that she ever requested any transcription from the court reporter or intended to do so. Indeed, our Supreme Court has stated that a court reporter’s attendance at a summary judgment hearing is “neither necessary nor appropriate to the purposes of such a hearing.” City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979).

The rules pertaining to appeals by indigents — as with all appellate rules — are to be liberally construed in favor of the right to appeal. Jones v. Stayman, 747 S.W.2d 369, 370 (Tex.1987). The only conceivable purpose behind the requirement that the court reporter receive prompt notice of the filing of an affidavit of inability to pay costs is to afford the reporter an opportunity to contest the affidavit. See id.; see also TEX.R.APP.P. 40(a)(3)(G). However, where the appellant plans to appeal without a statement of facts and neither requests that the reporter prepare a statement of facts nor intends to do so, his failure to notify the court reporter of the filing of an affidavit of inability to pay costs becomes irrelevant. We refuse to hold that this appeal should be forfeited because of the appellant’s failure to perform a useless act.

The proper objective of the rules of civil procedure is to obtain a “just, fair, equitable and impartial adjudication” of the substantive rights of the parties. TEX.R. CIV.P. 1. To this end, we are required to give the rules a liberal construction. Id.; see also Trevino v. Murray, 32 Tex.Sup. Ct.J. 545 (July 12, 1989, original proceeding). We hold that whenever a party appeals without a statement of facts and neither requests nor intends to request that a statement of facts be prepared by the court reporter, it is not necessary to serve notice upon the court reporter that an affidavit of inability to pay costs has been filed. See TEX.R.APP.P. 40(a)(3)(B). The El Paso Court of Appeals has very recently reached an identical conclusion concerning the appeal of a summary judgment without serv[803]*803ing notice upon the court reporter. Sanders v. Texas Employers Ins. Assn, 775 S.W.2d 762, 763-764 (Tex.App.—El Paso, 1988).

Appellee’s challenge to the jurisdiction, based upon appellant’s alleged failure to notify the court reporter of the filing of her affidavit of inability to pay costs, is overruled.

Turning to the merits of this case, Glenda Dobson (Passenger) appeals a summary judgment granted to appellee Stevens Transport (Owner) in her lawsuit for personal injuries resulting from a single-vehicle tractor-trailer accident. She sustained her injuries while riding with her husband, Charles Dodson (Driver), in one of Owner’s trucks. A few months prior to the accident and at the time that Driver was hired by Owner, both Driver and Passenger executed two of Owner’s standard form documents. The construction of these documents forms the core of this appeal. Each instrument was signed by Passenger, Driver, and Owner’s director of safety and driver personnel. The first document1 provided that Passenger would “forfeit” claims against Owner for injuries that Passenger might sustain in an accident, presumably while riding as a passenger in any of Owner’s vehicles. For the sake of convenience, we will refer to this first document as “the release,” without in any way prejudging its effect. Of crucial importance to the case, the release contained no expiration date.

The second document provided that Passenger was “authorized” to ride “as a passenger only” with Driver. As originally executed, it expressly stated that “[t]his authorization expires 9-11-86,” a date prior to Passenger’s injury. Owner’s representative later crossed out this expiration date and inserted a new expiration date, which Owner contends extended the authorization beyond the date of injury. Passenger contends that this change in expiration date was entered onto the instrument after the date of injury and without the approval of either Passenger or Driver. If this purported alteration of the expiration date were material, a disputed fact issue would exist and it would be necessary to remand this case. However, we hold that the summary judgment must be affirmed without regard to the attempted extension of the expiration date on the authorization instrument.

The trial court held that Passenger had validly released her claims against Owner; consequently, it awarded summary judgment to Owner. In this appeal, Passenger contends that the release did not incorporate any affirmative agreement that Passenger might ride in Owner’s vehicles on any particular occasion. Therefore, Passenger urges that the release was not supported by consideration and that it was ineffective. Alternatively, Passenger eon-[804]*804tends that the release and the authorization, having been executed at the same time and as a part of the same transaction, must be read and construed together. Under such circumstance, Passenger maintains that the release and the authorization expired on September 11,1986, a date prior to the accident. We reject both contentions.

Summary judgment is proper when the summary judgment proof shows that no genuine issue of material fact exists and that movant is entitled to judgment as a matter of law. E.g., Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). See also City of Houston v. Clear Creek, 589 S.W.2d at 679. All doubts as to a material issue of fact must be resolved against the movant, and all evidence favorable to the nonmovant will be taken as true in deciding whether a fact issue precludes summary judgment. See El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.1987); First Nat’l Bank v. Rector, 710 S.W.2d 100, 103 (Tex. App.—Austin 1986, writ ref’d n.r.e.). We must indulge every reasonable inference in the nonmovant’s favor. Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex.1985).

Neither party has pleaded that either of the instruments in question is ambiguous. Therefore, their interpretation has become a matter of law to be determined by the Court. R & P Enter, v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 518 (Tex.1980); Krafoe v. O’Keeffe, 753 S.W.2d 220, 221 (Tex.App.—Tyler 1988, writ denied); Covered Bridge Condominium Ass’n v. Chambliss,

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776 S.W.2d 800, 1989 Tex. App. LEXIS 2395, 1989 WL 107971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodson-v-stevens-transport-texapp-1989.