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Blankenship v. Robins

Supreme Court of Texas
Jun 15, 1994
878 S.W.2d 138 (Tex. 1994)

Summary

holding the motion for new trial and appeal bond filed in the severed cause number instead of the original cause number invoked appellate court jurisdiction of the appeal of the judgment in the original cause number

Summary of this case from In re J.S.

Opinion

No. 94-0349.

June 15, 1994.

Appeal from the 33rd District Court, Harris County, Richard P. Bianchi, J.

Michael Duncan and Raymond L. Britton, Houston, for petitioner.

E. Lawrence Vincent, Houston, for respondent.


The sole issue in this case is whether the court of appeals properly dismissed the appeal for lack of jurisdiction. Without hearing oral argument, a majority of the court reverses the judgment of the court of appeals and remands for further proceedings. See TEX.R.APP.P. 170.

Ronald Robins sued J. David Blankenship II and two other defendants to recover the unpaid balance on two promissory notes. The trial court granted summary judgment against Blankenship and, to finalize the judgment for purposes of appeal, severed the judgment from the claims against the remaining defendants. The trial court's order stated that the remaining defendants would be assigned a new cause number, leaving the summary judgment against Blankenship under the original cause number. The abstract of judgment issued by the clerk, however, stated the opposite — that the remaining defendants would continue under the original cause number while the summary judgment was given a new cause number.

The confusion which ultimately led to the court of appeals' dismissal apparently arose because of the trial court's unusual method of severance in this case. Ordinarily, the judgment is severed in order to make it final and then given a new cause number, leaving the remaining parties under the original cause number, just as indicated in the clerk's abstract of judgment.

The trial court and both parties acted in accordance with the abstract of judgment rather than the court's order. Blankenship filed a timely motion for new trial and Robins filed his reply, both under the severed cause number rather than the original one. The motion for new trial was overruled by operation of law and was docketed by the court as such under the severed cause number as well. Blankenship then filed his appeal bond and transcript under the severed cause number, timely assuming he had filed a motion for new trial. The court of appeals, however, dismissed for lack of jurisdiction because the motion for new trial and appeal bond were not filed in the same cause as the judgment the motion assails. See Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985).

"[A] party should not be punished 'for failure to comply with the terms of an order of severance ignored by [both the opposing party] and the court.' " Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992), quoting Southland Paint Co., Inc. v. Thousand Oaks Racket Club, 687 S.W.2d 455, 457 (Tex.App. — San Antonio 1985, no writ). Instead, "the decisions of the courts of appeals [should] turn on substance rather than procedural technicality." City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992), quoted in Mueller, 826 S.W.2d at 609; see also Crown Life Ins. Co. v. Estate of Gonzales, 820 S.W.2d 121 (Tex. 1991). Furthermore, Blankenship's actions, in accordance with the abstract, constituted "a bona fide attempt to invoke the appellate court jurisdiction." Mueller, 826 S.W.2d at 609; see also City of San Antonio, 828 S.W.2d at 418; Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, 813 S.W.2d 499, 500 (Tex. 1991).

For these reasons, the court of appeals improperly dismissed for lack of jurisdiction. We reverse the judgement of the court of appeals and remand for further proceedings.


Summaries of

Blankenship v. Robins

Supreme Court of Texas
Jun 15, 1994
878 S.W.2d 138 (Tex. 1994)

holding the motion for new trial and appeal bond filed in the severed cause number instead of the original cause number invoked appellate court jurisdiction of the appeal of the judgment in the original cause number

Summary of this case from In re J.S.

holding that filing a motion for new trial in the wrong cause number and then filing a notice of appeal were actions constituting a bona fide attempt to invoke appellate court jurisdiction

Summary of this case from Fort Bend Cnty. v. Norsworthy

holding that filing a motion for new trial in the wrong cause number and then filing a notice of appeal were actions constituting a bona fide attempt to invoke appellate court jurisdiction

Summary of this case from Tex. G & S Invs., Inc. v. Constellation Newenergy, Inc.

finding motion for new trial erroneously filed in severed cause number rather than in original cause number nonetheless extended appellate timetable in original cause number

Summary of this case from Lagoye v. Victoria Wood Condo

finding motion for new trial erroneously filed in severed cause number rather than in original cause number nonetheless extended appellate timetable in original cause number

Summary of this case from Matlock v. Mccormick

reversing court of appeals' judgment dismissing appeal based on Philbrook and asserting courts of appeals' decisions should turn on substance rather than procedural technicality

Summary of this case from George v. Compass Bank

reversing court of appeals' judgment dismissing appeal based on Philbrook and asserting courts of appeals' decisions should turn on substance rather than procedural technicality

Summary of this case from George v. Compass Bank

reversing court of appeals' judgment dismissing appeal based on Philbrook and asserting courts of appeals' decisions should turn on substance rather than procedural technicality

Summary of this case from Villa Dijon Condo. Ass'n, Inc. v. Winters

stating "the decisions of the courts of appeals [should] turn on substance rather than procedural technicality"

Summary of this case from Dailey v. McAfee

providing that "the decisions of the courts of appeals [should] turn on substance rather than procedural technicality"

Summary of this case from In re Estate of Klutts

reviewing courts' decisions should "turn on substance rather than procedural technicality"

Summary of this case from Chambers v. Allstate Ins. Co.

distinguishing Philbrook on grounds that a motion for new trial in the wrong cause number is sufficient when both the parties and the court ignore the severance and there is a bona fide attempt to invoke appellate jurisdiction

Summary of this case from Jones v. Tummel

distinguishing Philbrook on grounds that a motion for new trial in the wrong cause number is sufficient when both the parties and the court ignore the severance and there is a bona fide attempt to invoke appellate jurisdiction

Summary of this case from In re Old Am. Cnty. Mut. Fire Ins. Co.

In Blankenship v. Robins, 878 S.W.2d 138, 138-39 (Tex. 1994), the motion for new trial was filed in the severed cause number rather than the original.

Summary of this case from Paselk v. Rabun

In Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex. 1994), the Texas Supreme Court held the decisions of the courts of appeals should turn on substance rather than procedural technicality.

Summary of this case from Hernandez v. Koch Mach
Case details for

Blankenship v. Robins

Case Details

Full title:J. David BLANKENSHIP, II, Petitioner, v. Ronald A. ROBINS, Respondent

Court:Supreme Court of Texas

Date published: Jun 15, 1994

Citations

878 S.W.2d 138 (Tex. 1994)

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