PORT DISTRIBUTING CORP., Appellant, v. FRITZ CHEMICAL COMPANY, Appellee.
No. 05-88-01041-CV.
Court of Appeals of Texas, Dallas.
May 26, 1989.
Rehearing Denied July 25, 1989.
775 S.W.2d 669
Given the agreement of the parties, and the uncertainty of the law regarding this Court‘s jurisdiction, as reflected in our opinion on second motion for rehearing, and subject to a subsequent determination by the Supreme Court that this Court lacks jurisdiction, we grant appellants’ motion for reconsideration, аnd having done so, we overrule appellants’ second and third motions for rehearing. Nothing contained herein, however, should be construed as holding either that we have jurisdiction or that we lack jurisdiction.
HOWELL, Justice, dissenting.
Again, I dissent. This Court may not avoid the jurisdictional issue. As indicated in the previous dissent of the writer, it should sustain our jurisdiction to consider the second motion for rehearing that has been presented to us. What this Court may not do is by-pass the jurisdictional issue.
A court without jurisdiction may not act.
Neither is it proper for a Texas court to render advisory or hypothetical opinions. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960). Until our jurisdiction is established, we should not address the second motions now before us.
I therefore dissent from the Court‘s most recent opinion. I express no opiniоn on the merits of the motions now before the court.
Lindy D. Jones, Lee Anne Stewart, Dallas, for appellee.
Before MCCLUNG, BAKER and KINKEADE, JJ.
ON MOTION FOR REHEARING
MCCLUNG, Justice.
Our opinion of May 26, 1989 is withdrawn and this opinion is issued in lieu thereof. Appellee‘s motion for rehearing is denied.
This case is an appeal by Port Distributing Company from a summary judgment granted in favor of Fritz Chemical Company. Fritz filed suit against Port based upon a verified account. Fritz alleged that it had sold and delivered certain goods to Port who had failed to pay the sums due. Port‘s answer was a verified denial of the sworn account. Thereafter, Fritz filed a motion for summary judgment. A hearing on the motion for summary judgment was scheduled for May 27, 1988.
On May 18, 1988, the clerk received and file-stamped Port‘s summary judgment response and supporting affidavit. On May 18, 1988, the clerk also received a single document which contained Port‘s amended answer and its counterclaim. Because a filing fee had not accompanied the counterclaim, the clerk, improperly, did not file-stamp the amended answer and counterclaim until June 1, 1988, five days after arguments were heard and summary judgmеnt was granted in favor of Fritz. See Arndt v. Arndt, 709 S.W.2d 281, 282 (Tex. App.—Houston [14th Dist.] 1986, no writ). The trial court struck Port‘s amended answer and counterclaim at the time summary judgment was heard, which suggests that those dоcuments were, in fact, physically in the court‘s jacket and before the court on May 27, 1988. The order to strike was ostensibly based upon Fritz‘s motion to strike Port‘s amended answer and counterclaim because they were not timely filed.
The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidаvit, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of fact remains. Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962). The
At the time of the summary judgment hearing, Port had on file a verified answer specifically denying the sworn account. See Rizk v. Financial Guardian Ins. Agency, Inc., 584 S.W.2d 860, 863 (Tex.1979); Huddleston v. Case Power & Equip. Co., 748 S.W.2d 102, 103 (Tex.App.—Dallas 1988, no writ); Bentley Village, Ltd. v. Nasits Bldg. Co., 736 S.W.2d 919, 922 (Tex.App.—Tyler 1987, no writ). Port also had on file a response to the motion for summary judgment. In its response and the accompanying affidavit, Port alleged that it had ordered floor covering and adhesives from Fritz and that the floor covering was defective in the following respects: it was an improper color; it became stained, although Fritz represented it was impermeable; it was not “square” and thus would not line up properly when placed on the floor. Additionally, the adhesive recommended by Fritz allowed the floor covering to become loose following installation. The attached affidavit was made by Port‘s president who hаd personal knowledge of these allegations. Fritz argues that Port‘s affidavit is based on hearsay. Although the affidavit does contain some statements which are arguably based upon hearsay, the bulk of the specific factual allegations are not. In its response and affidavit Port established by competent evidence the existence of material fact issues. Therefore, the trial court erred in entering summary judgment in favor of Fritz.
We turn now to the effect of the trial court‘s order striking Port‘s amеnded original answer and counterclaim. Each side proceeds on the basis that the trial court struck Port‘s pleadings because they were not filed within the time limits prеscribed by the rules of procedure or the local Dallas rules. See
The trial court еntered an order granting summary judgment for Fritz on May 27, 1988. In a separate document also dated May 27, 1988, the court entered an order striking Port‘s amended answer and counterсlaim. The fact that the court chose to dispose of this case in two separate orders is of no import. Separate instruments executed at the samе time, for the same purpose, and in the course of the same transaction are considered to be one instrument. See Jones v. Kelley, 614 S.W.2d 95, 98 (Tex.1981). Therefore, the order striking Port‘s pleadings was merged into the final judgment. See Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex.1972); Radelow-Gittens Real Property Management v. Pamex Foods, 735 S.W.2d 558, 560 (Tex.App.—Dallas 1987, writ ref‘d n.r.e.). Since there can be only one final judgment entered in any cause, the two orders are construed as a single judgment.
In two cross-points, Fritz complains that the trial сourt should have entered a default judgment against Port and also that its claim for attorney‘s fees was improperly reduced. Pursuant to the recent opinion by the Texas Supreme Court in Harvey E. Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634 (Tex. 1989), Fritz may complain by cross-point without perfecting an independent appeal. However, complaints of some alleged error must be raised below to afford the trial court an opportunity to correct any errors. Luna v. S. Pac. Transp. Co., 724 S.W.2d 383, 384 (Tex.1987); West Texas Utilities Co. v. Irvin, 161 Tex. 5, 7, 336 S.W.2d 609, 610-11 (1960). Fritz‘s brief fails to indicate where in the record it presented its complaints to the trial court. We hold that when Fritz failed to present its complaint to the trial court, it waived its right to cоmplain.
KINKEADE, Justice, concurring.
I approve of the majority‘s opinion with one exception. I would decline to follow Chapman Air Conditioning, Inc. v. Franks, 732 S.W.2d 737, 742 (Tex.App.—Dallas 1987, no writ), and would hold that this Court may entertain Fritz‘s cross-points pursuant to Hernandez v. City of Fort Worth, 617 S.W.2d 923 (Tex.1981) (per curiam); Dallas Electric Supply Co. v. Branum Co., 143 Tеx. 366, 185 S.W.2d 427 (1945); and
However, Fritz‘s brief fails to indicate where in the record it presented its complaints to the trial court. Even whеre an appellee is entitled to bring a cross-point, it must allow the trial court an opportunity to correct any errors by filing exceptions to the judgment, a notice of appeal, or a motion for new trial. City of Dallas v. Moreau, 718 S.W.2d 776, 782 (Tex.App.—Corpus Christi 1986, writ ref‘d n.r.e.);