Summary
holding that dismissal of the appeal is improper until opportunity to rebrief is afforded the appellant
Summary of this case from Caldwell, Matter ofOpinion
No. C-6186.
April 1, 1987.
Appeal from 215th District Court, Harris County, Eugene Chambers, J.
William B. Portis, Jr., Houston, for petitioners.
Lawrence L. Bellatti and Lori M. Gallagher, Andrews Kurth, Houston, for respondent.
OPINION ON APPLICATION FOR WRIT OF ERRORThis is an appeal from a summary judgment. Texas American Bank sued Inpetco, Inc., H. Brennan, Inc. and Henry Brennan on a promissory note. In defense, Inpetco alleged that the note sued upon was executed in violation of a prior controlling agreement which was the governing instrument for all of Inpetco's borrowings from the bank. The bank moved for summary judgment asserting alternatively that the prior agreement did not apply to the note in question and, in the event that the agreement applied, that the bank complied with its terms. The trial court rendered summary judgment for the bank which the court of appeals affirmed. 722 S.W.2d 721 (Tex.App. 1986).
The petitioners herein are collectively referred to as Inpetco.
In refusing the application for writ of error, no reversible error, a majority of the court disapproves that portion of the court of appeals opinion which states Inpetco waived its point of error by failing to comply with the briefing requirements of Tex.R.App.P. 74. Rule 74 should be read in conjunction with Tex.R.App.P. 83 which provides, "A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities. . . . " The court of appeals erred in affirming the trial court on the basis of Inpetco's briefing inadequacies without first ordering Inpetco to rebrief.
Formerly Tex.R.Civ.P. 414.
Formerly Tex.R.Civ.P. 437.
Reviewing the summary judgment evidence in the light most favorable to Inpetco, a majority of the court has determined that no genuine issue of material fact exists which would preclude summary judgment; consequently, the court of appeals was correct in affirming the trial court judgment. The application for writ of error is refused, no reversible error.