Handy Andy, Inc. v. Ruiz, 900 S.W.2d 739

Handy Andy, Inc. v. Ruiz

900 S.W.2d 739

Tex. App.

1995

Check Treatment

*1 (Tex.1983). Co., ments for differ from Bell Tel. 658 S.W.2d 563 аttractive nuisance premises Kopplin v. those for defect. See to the that The court therefore erred extent Garland, City summary granted judgment against the denied). App. The attrac expressly nuisance claim. We do attractive — Dallas tive nuisance claimant must show that the or the not address the merits оf that claim property possessor was one which the knew summary judgment outcome of a motion for (1) or should have known that small children against the claim because that motion was likely frequent property play would the point presented below. We sustain one (2) it, property that condition claim.3 as tо the Lunas’ attractive nuisance possessor which the knew or should have summary judgment affirm the as to known involved unreasonable risk of death or responsible appellees claim that the were (3) bodily children, serious harm to the pipe dangerous for the as the condition. We child, youth, appre because of his did not proceedings reverse and remand further condition, ciate the risk involved appellees’ responsibility pipes on the for the (4) removing that the burden of the condition as an attractive nuisance. slight as compared probability to the injury. See id.

Appellees protest the Lunas cannot

argue appeal playing that children on the

pipe dangerous was the condition because

they apprise failed to the trial court оf this Appellees

issue. are mistaken. The above-

quoted paragraphs petition from the live con- requirements tain the for an attractive nui- ANDY, INC., Appellant, HANDY Compare sance claim. with Banker v. McLaughlin, 146 Tex. (1948); 438; Kopplin, 869 at see RUIZ, Appellee. Adam (SECOND) also RESTATEMENT OF (1965). TORTS 339 The Lunas mentioned No. 13-93-476-CV. response the claim ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍name in their Texas, Appeаls Court summary motion judgment. The claim Corpus Christi. was raised at the trial level. Dec. 1994. Appellees’ motion did not address the They attractive nuisance claim. insisted Rehearing May Overruled maintain that presented the claim was not at They the trial accordingly court. did summary judgment

move for

claim; they produced no evidence оn regarding knowledge, percep

the issues risk, duty

tion or the Mar- regarding

tinezes had or should have had

presence interacting of children with the

presence pipe. The trial court could granted summary judgment against

not have claim not addressed the motion. See Lloyds

Black v. Victoria Ins. (Tex.1990); Chessher v. Southwestern closed, however, finding plaintiffs alleged 3. Our that the with a statement attractive nuisance claim does not render the denying granted. all relief not otherwise summary judgmеnt against premises ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defect judgment against court thus also rendered interlocutory. claim The court rendered sum- jurisdiction attractive nuisance claim. We have mary judgment based on the dealt motion that both claim. consider pipe dangerous with as the condition. *2 Handy response filed on of behalf Andy nature of on June response dispute core of here. forms the the said that checked the file

Ruiz’s counsel he 15, 1993, response on and found no June copy Handy Andy; he did from not receive the until much The trial response later. Handy Andy court had failed to found that wholly answer and had made and default. The court awarded Ruiz $17,552.30 аgainst Handy Andy. judgment of Handy Andy’s for The court denied motion new trial. points of er-

Handy Andy appeals two ror. It court erred in contends the judgment in refus- granting the default and ing the trial. new gar- the for rules outline actions. 665-668. nishment Tex.R.Civ.P. provides answer the “[t]he oath, writing garnishee under shall be him, signed by and shall make true answers inquired in the writ matters sevеral garnishment.” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Rule out 666 sets three garnishee that a must make to averments liability. the discharge earn action and (1) garnishee These are that the is averments not to the defendant and was so indebted garnishment the writ of indebted when served, (2) garnishee pos- the does sess effects of the defendant Treu, Jeffers, Brook, (3) Kreager served, B. & Steven none writ was when the Antonio, appellant. Gragg, for garnishee person San the denies other knowledge within his are indebted the Griffin, Jr., Cynthia Sheppard, T. John possession or have their effects defendant Victoria, Houston, Griffin, ap- Marek defendant, gar- belonging to the or that pellee. (The persons. and names such nishee knows element.) inwrit this case omitted the third KENNEDY, FEDERICO Before G. controverted, garnishee’s If the answer is not HINOJOSA, YÁÑEZ, Jr. and JJ. discharging judgment enter court shall garnishee. Tex.R.Civ.P. 666. OPINION Depending and other show- KENNEDY, Justice. judgment ings, may also the court enter Handy Andy, grant appeals from the to file plaintiff. If the fails judgment favoring Adam of а default Ruiz judg- timely the court render a garnishment action. We reverse and re- against in other ment default as cases mand. judg- full garnishee for the amount Tex. against sought garnishment a ment the defendant. Ruiz collect on rendered also render L.E. 667. The he held Wood. R.CrvP. plaintiff if the answer applica- for the received service May 20,1993. indebted garnishment other methods show tion for writ styled to the defendant as described in first “Plea has considered document purposes averment. in Abatement” as an answer for Tex.R.Civ.P. 668. defeating judgment. a default Martinec Handy The document filed on behalf of Maneri, *3 (Tex.Civ.App.— 494 S.W.2d 956 “AFFIDAVIT”, Andy was entitled but some- writ). 1973, signature no San Antоnio one, clerk, possibly the court’s hand-wrote party attorney either a or his is a formal “Answer” and the cause number across the requisite of an answer and the lack thereof top of the affidavit. provided The document justify does not default in a normal case. as follows: (Tex. Corbett, 687, Frank v. 682 S.W.2d 688 Salazar, Street, David 2001 South Laredo writ). 1984, App. presence no The or — Waco Antonio, 78207, County, San Bexar Texas of an absence does not determine Inc., registered agent Handy Andy, ap- default, whether an answer can stave off peared undersigned, before me the corporation need not we delve into whethеr a upon being duly sworn on his oath did appear attorney.1 can without an depose and state: answer, The affidavit thus serves as an Handy Andy, 1. Inc. is not to indebted uphold albeit a defective one. Our decision any L.E. Wood for amounts when the writ ing judgment against a garnishee default a was served. inappo- who failed to an file answer is thus Handy Andy, 2. Inc. has no effects of site. Swiderski v. Victoria Bank & Trust Cf. possession. L.E. in its Wood Co., 676, (Tex.App —Corpus 706 680 S.W.2d . Handy Andy, 3. knowledge Inc. has no n.r.e.). 1986, Christi writ ref 'd The court’s persons other who are indebted to L.E. judgment, reciting to failed Wood or who has of his effects in their answer, is thus erroneous. possession. in find the deficienciеs SWORN AND SUBSCRIBED ME TO justify the averments do not default. The MAY, THIS 27TH DAY OF 1993 that, garnishee Dallas court held where a Margaret A Gutierrez /s/ writ, answers the merits of the the absence NOTARY PUBLIC justify third averment does not [Notary seal] judgment. Healy Bldg. Sys., default v. Wick The document signature lacked Salazar’s or a 713, (Tex.Civ.App.— 560 S.W.2d 721 description of the oath he took. docu- The n.r.e.). 1977, Healy Dallas writ ref'd The ment signature also lacked a appear- or gar court details the evolution of default in by ance attorney. an nishment cases. Id. at 716-721. The su court, We find that preme these deficiencies ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ren reversing discharge while of a answer, dered the document garnishee defective as an because he failed to answer all the not, in objections spe required questions, absence of or garnish wrote that the exceptions, cial nullity. An excepted unverified ee’s defective at least until sworn prevent to, denial can Scarborough, avoided default. Jemison v. (1882). in 358, a case where thе defendant was 56 Tex. 360 Sometime thereaf required ter, to file a sworn denial. apparently began require v. the courts to Stanford Co., (Tex. 412, Lincoln Tank 421 garnishees questions S.W.2d 413 to all in answer the writ writ). 1967, Civ.App. nullity Worth A or have their answer considered a — Fort speak (Tex.Civ.App. The rules of civil do to this 45 [1st Dist.] — Houston allowing parties аppear Tyson language issue. Rule to either case drew its person attorney, opinion or an held has been to the Dell of the other Houston court. individuals, Dell, apply only corporations. Tyson, (citing to Dell 862 S.W.2d at 737 743 Co., 303) court, however, Corp. Supply Dev. v. Best Indus. S.W.2d at The Dell cites to Uniform (Tex.App. [14th Dist.] one of its еarlier decisions in which it declined to — Houston denied). appellate corporation Two Texas courts address the issue of whether a could officer; through have held that a cannot an earlier through attorney. court but Electronic Data chose to deem such avoidance of Sys. Corp. Tyson, negligent. Express American Co. v. Mon 1993, writ); Co., (Tex.Civ. App. Leasing, Globe Food Dist. — Dallas fort Serv., 1976, writ). Engine Supply App. & Mach. — Houston of cases Gray default. See v. Armour 129 719. We find line face Monfort (1937). produces unnecessarily harsh result that Tex. justice. impose total stance, hinders Those cases away Gray court backed from that procedural defeat on a mis- holding if the answered all best, procedure. step in an informational At questions predecessor possibility setting with the aside the de- questions any failure to answer additional fault, produces process. an inefficient objection exception required before de worst, imposes At the full on a appropriate. Id. fault was except party with no blame inattentiveness to Gray operating court was under the detail. statutory predecessor Rule 667 which had *4 adapt go step beyond Healy and We a subtly wording. pro a Article different 4087 that, holding in Santex in the absence оf appropriate vided default was “should objections, exceptions judgment no or default garnishee fail file to to such answer said can a whose be taken re- required.” writ as herein Tex.Rev.Civ.Stat. sponds to some of the merits of the writ but 4087, May 15, repealed by art. Act of Ann. supply to all of the Rule 666 averments. fails Lеg.R.S., 46th eh. Gen. 1939 in 666 are those The elements listed 201. The current rule allows the court Laws answered, that, discharge. part if allow No to if “the render default requires be of Rule 667 answered to file an Tex.R.Civ.P. 667. A fails answer.” default; to 667 avoid rather Rule allows de- that, though differ Houston court said in an inter- fault the absence of answer. Our Grаy ence created some doubt that the rule pretation recognizes this It al- distinction. effective, it to find was still declined by of inatten- lows correction errors caused in significant difference the absence (com- tion in a less burdensome supreme ruling and cited other cases to, pared example, hearing on a motion for said, Gray. it to apply continued error, trial, appeal), still for new writ of but Express v. American Co. Food Dist. Monfort plaintiffs against grossly to allows recover (Tex.Civ.App 52 . —Hous equivocating garnishees. inattentive or writ). ton no timely according pleading The supreme that we con mandates sheet, though Ruiz’s trial court’s docket liberally pleadings strue favor sought did see default. counsel it when he pleader special if exceptions have been pleading purports to be on oath an Lawyers Corp., v. Title filed. See Stone Ins. agent corporation. It lists the ad- (Tex.1977). The San it, Andy parts ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍In Handy responds to dress. to Antonio court held that a letter on file questions, completely three but fails to all an it trial court constituted answer because neglects to aver respond the first two. It character, pleading of was a written some currently that it was not indebted to Wood though it that did omitted certain formalities рossessed no of Wood and that it effects Roofing not render it ineffective. Santex objections or when the writ was No served. Metal, Steel, Sheet v. Venture exceptions appear here. The record (Tex.App. Antonio — San defective, pleading is deficient The court credited letter be to see how an answer nonetheless. We fail by signed cause an officer opinion can construed authorize be address, corporation, contained the and was public practice as to now law notaries timely Id. filed. The court noted the repeat what has al- suggests. dissent To exceptions. special Id. absence said, writing ready been we hold that join distinguishing to ward We the Dallas court should serve has answer sufficient therein) (and judgment against garnishee. the cases cited as off a default Monfort against Handy misapplied on outmoded law and lan- The court’s based Gray. Healy, Andy at is therefore erroneous.2 guаge from See simple litigation attorneys apparently supports note this case the courts that We capable employ fully of mak- corporate parties are found that tasks. While have pro- “pleading,”1 reverse and remand for farther strued as a constitutes an autho- ceedings. appearance corpora- rized the defendant I that it tion. would hold does not. HINOJOSA, J., Jr., FEDERICO G. I find no evidence the record that the dissents. notary public was authorized to file an an HINOJOSA, Jr., Justice, corporation. FEDERICO G. swer on behalf of the See Coker Weatheread, dissenting. (Tex.App.— 852 S.W.2d 764 writ) Tyler (non-party husband can majority notary рublic holds that a agent not act as unauthorized of defendant corpora- file an behalf pro wife’s and file se answer to disagree I respectfully tion. dissent. account); Daylin, suit on sworn Inc. v. Jua “any party Tex.R.Civ.P. states that to a rez, (Tex.App. Paso —El may appear prosecute suit or defend his denied) (dоcument 1989, writ contained no therein, rights in person either relief; prayer salutation to court or However, long of the court.” it has showing product that it was of defendant or applies only been held that Rule 7 to individ attorney); Pettaway Pettaway, its see also *5 corporations. Leasing, uals and not Globe (Tex.Civ.Aрp. 177 S.W.2d 286-287 —El Serv., Engine Supply Inc. v. & Machine writ) (letter signed by Paso defen (Tex.Civ.App. [1st —Houston by organization dant but filed insufficient to Only Dist.] licensed jurisdiction defendant; give court over may practice corporation may law. Id A appeal). merits of I nevertheless considers officers, through not in court its who also find no evidence the record that the attorneys. are not Moore v. Elektro-Mobil product document was the of the GmbH, Technik attorney or its and no evidence that denied); App. Paso writ Electronic —El document was intended to be filed as an Sys. Corp. Tyson, Data 862 S.W.2d appearance by corporation. 1993, writ); (Tex.App. Dell —Dallas Notary practice A Public not licensed to Corp. Dev. Supply Best Indus. Uniform law, prohibited practicing giving law is (Tex.App. —Houston legal accepting legal advice and fees for ad- denied); writ Globe Leas 406.016(d). vice. Tex. Gov’t Code Ann. ing at 45. majority ignores this statute and effec- majority opinion states the “docu- tively proclaims public that notaries now ment filed on behalf of practice law. ‘AFFIDAVIT,’ someone, possi- entitled but I, therefore, respectfully dissent. clerk, bly the court’s hand-wrote “Answer” cause top across the number signed by affidavit.” The document corpora- officer of the only signed by

tion. The document was Gutierrez,

Margaret notary public.

determinative issue in this case is whether “affidavit,” purported liberally con- above, ing missteps they purported discussed are edu- 1. The affidavit contains no salutation court, relief, prayer showing and no impor- cated and conditioned to understand the product is the of the defen- that the document complying procеdure, tance of with rules of Juarez, Daylin, attorney. dant or its See Inc. v. (presumably) likely are thus less to make such denied) (Tex.App.1989, missteps. they money Parties who believe save (papers delivered to clerk could not constitute employing attorneys reexamine that liberal answer even under constructiоn light litigation decision in like this case. Not Frank, procedure); rules of civil cf. annoy litigants, do such cases and cost the (unsigned general at 588 specific answer contains judicial consume scarce and re- time denials, defenses, and claim affirmative end, customers, litigants, sources. In the relief; prevent de- for affirmative fault). sufficient to taxpayers pay price. and the