Howell v. Fifth Court of Appeals

689 S.W.2d 396, 28 Tex. Sup. Ct. J. 232, 1985 Tex. LEXIS 740

• Court: Texas Supreme Court
• Decided: February 6, 1985
• Docket: C-3307
• Status: Published

Opinions

CAMPBELL, Justice.

This is an original mandamus action. The Court of Appeals for the Fifth Supreme Judicial District ordered the Honorable Charles Ben Howell, relator, to allow a nonsuit in a case filed in his court, the 191st Judicial District of Dallas County. Judge Howell seeks to have the court of appeals’ order vacated.

On March 17, 1984, Brenda J. Farnham sued Hilti, Inc. and Mark Spiegal to recover damages for the death of her husband, Stephen Douglas Farnham.’ Brenda also sued as next friend of her minor children, Christina Mechelle and Chad Douglas Farn-ham, and as representative of Stephen’s estate. Francis Lincoln Farnham, the deceased’s father, and David Klucker also sued to recover damages for Stephen’s death.

The parties negotiated a settlement and requested Judge Howell’s approval of the agreement. Judge Howell appointed Diamond J. Pantaze to represent the children as guardian ad litem. Judge Howell orally appointed Pantaze on May 15 and the appointment is noted on the docket sheet. On May 21, Brenda Farnham, individually and in her representative capacities, filed a non-suit. A written order appointing Pantaze was signed on June 5. Judge Howell refused to allow the nonsuit.

The court of appeals, by mandamus, ordered Judge Howell to allow the nonsuit. Judge Howell now seeks to have the court of appeals’ judgment vacated.

In oral argument this court was advised that Brenda J. Farnham, individually and in representative capacities, and the other plaintiffs, filed suit in the 348th Judicial District in Tarrant County. This suit involved the same parties and was based on the same occurrence as the Dallas County suit. A final judgment was rendered.

Further, the Tarrant County district court judgment, dated June 15, 1984, reflects that another guardian, ad litem was appointed to represent the two minor children. In that judgment, Brenda is to receive $343,500 in cash from which all attorneys fees and court costs are to be deducted; $25,000 is to be placed in an interest-bearing account and released to Christina on her 18th birthday, and $20,000 is to be placed in a similar account to be released to Chad on his 18th birthday. Brenda is to receive $1,300 per month and a lump sum payment of $25,000 in five years, $50,000 in ten years, $75,000 in fifteen years and $100,000 in twenty years. Christina is to receive $10,000 per year for five years beginning on her 18th birthday. Chad will receive $10,000 per year for four years beginning on his 18th birthday and $15,000 on the fifth year after he reaches 18.

The judgment rendered in Tarrant County is final. Therefore, the mandamus is denied.

ROBERTSON, J., concurs. GONZALEZ, J., dissents, in which McGEE and KILGARLIN, JJ., join.