FLESHER CONSTRUCTION COMPANY, INC. v. Hauerwas

491 S.W.2d 202, 1973 Tex. App. LEXIS 2327

• Court: Court of Appeals of Texas
• Decided: February 8, 1973
• Docket: 18035
• Status: Published

Opinions

CLAUDE WILLIAMS, Chief Justice.

Coffee Hauerwas brought this action against Flesher Construction Company, Inc. (hereinafter called Flesher) and Carter Management Company (hereinafter called Carter) seeking to recover the balance allegedly due him upon an oral contract between the parties pursuant to which Hauerwas agreed to furnish and supervise all labor necessary to perform the masonry construction phase of a building being erected in Dallas by Flesher, as general contractor, for Carter, as owner. The case was tried before the court and a jury and submitted upon nineteen special issues all of which were answered favorably to Hauerwas. Final judgment was granted on April 20, 1972 awarding Hauerwas a judgment against Flesher and Carter, jointly and severally, for $12,844.98 together with attorney’s fees of $4,281.66. It was also ordered that Flesher and Carter take nothing from Hauerwas by reason of the counterclaim asserted. From this judgment Flesher and Carter appeal.

MOTION TO DISMISS FOR WANT OF JURISDICTION

At the outset we are confronted with ap-pellee’s motion to dismiss this appeal on the ground that this court lacks jurisdiction. Essential to the resolution of this question is the following statement of events set forth in chronological order:

The case proceeded to trial on January 31, 1972. The jury returned its verdict February 1, 1972. Hauerwas filed his motion for judgment on the verdict February 3, 1972. Flesher and Carter filed their motion for judgment non obstante veredic-to on February 11, 1972. On March 10, 1972 the court signed and entered a judgment. On March 20, 1972 Flesher and Carter filed “Defendants’ Motion for New Trial.” On April 10, 1972 Flesher and Carter filed “Defendants’ Amended Motion for New Trial.” On April 20, 1972 the court rendered “Final Judgment” in which it was recited that the judgment dated March 10, 1972 was interlocutory in that disposition of all parties and actions was not therein made. The court then proceeded to enter a final judgment “in lieu and substitution of and in all things in the place and stead of the above identified Judgment.” On May 1, 1972 Flesher and Carter filed “Defendants’ Amended Motion for New Trial” which was addressed to the judgment entered on March 10, 1972 “and the judgment entered on April 20, 1972.” Thereafter on May 11, 1972 Flesher and Carter filed “Defendants’ Amended Motion for New Trial” which was again addressed to the judgment entered on March 10, 1972 and the judgment entered on April 20, 1972. The trial court took no action on either motion. On June 23, 1972 Flesher and Carter filed their appeal and supersedeas bond and thereafter on August 23, 1972 filed a transcript of the appeal in this court.

Appellee contends that having filed their original and one amended motion for new trial prior to the entry of the final judgment on April 20, 1972 that appellants could legally only file one motion for new trial following the entry of such judgment so that the filing of the transcript in this court, pursuant to the rules, would have been required by August 14, 1972. Appel-lee concedes that if appellants had the right to file two motions for new trial after the entry of the final judgment that the appeal has been validly perfected by the filing of the transcript on August 23, 1972 which would have been within sixty days following the overruling of the second motion for new trial by operation of law forty-five days after the file date thereof. Appellee takes the position that the original motion for new trial and the first amended motion for new trial, having been filed prior to the rendition of the final judgment on April 20, 1972, should be treated as a motion filed pursuant to Rule 306c, Texas Rules of Civil Procedure. Under this contention they argue that such motion or motions could be considered as having been filed on April 20, 1972 following the entry of the final judgment and that, since Rule 329b, Tex.R.Civ.P., only allows one amended motion for new trial, we may not consider more than the first motion filed after the entry of the final judgment.

We cannot agree with appellee’s contention. Appellee candidly concedes that there was only one final judgment rendered by the court in this case and that was the one dated April 20, 1972. It is un-controverted that the judgment dated March 10, 1972 was interlocutory in nature and therefore not a final judgment which was appealable. Accordingly, the original motion for new trial and the first amended motion for new trial, both filed after March 10, 1972 and both being addressed to the March 10 judgment, were not and cannot be considered prematurely filed motions pursuant to Rule 306c, Tex.R.Civ.P. The judgment dated April 20, 1972, being the only final judgment rendered by the court, was subject to be attacked by a motion for new trial and one amended motion for trial. This was accomplished by appellants although they erroneously styled the first motion for new trial attacking the April 20 judgment as “Defendants’ Amended Motion for New Trial.” We look to the substance rather than the form of the motion and conclude that such motion filed by appellants on May 1, 1972 constituted a timely filed original motion for new trial directed at the April 20 judgment and that the motion thereafter filed on May 11, 1972 was timely filed as an amended motion for new trial. The record was therefore filed in this court within proper time. Our conclusion in this matter is supported by the case of Dubert v. Adkins, 475 S.W. 2d 383 (Tex.Civ.App., Corpus Christi 1971, no writ). Appellee’s motion to dismiss is overruled.