Markowitz, Lynda v. Allstate Insurance Company--Appeal from 44th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LYNDA MARKOWITZ,

Appellant,

v.

ALLSTATE INSURANCE COMPANY,

Appellee.

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No. 08-01-00415-CV

Appeal from the

44th District Court

of Dallas County, Texas

(TC# DV99-00157-B)

OPINION DISMISSING APPEAL FOR LACK OF JURISDICTION

This case is before the Court=s on its own notice to show cause why the appeal should continue, it appearing to us that we lack jurisdiction. Finding that Markowitz=s notice of appeal was not timely filed, we dismiss.

Facts

In October 2001, this Court sent notice to all parties that this appeal had been transferred from the Fifth Court of Appeals, and that based upon the information before us, it appeared that notice of appeal had not been timely filed and we therefore lacked jurisdiction. The Court invited the parties to show cause why the appeal should be continued. Both parties have briefed their positions to this Court. We outline the facts relevant to our decision below.

According to Markowitz=s petition, she was in an automobile accident with Thomas Dale Leach on February 26, 1995. She made claims for personal injury, settled with Leach, and then made an underinsured motorist claim against her own insurer, Allstate. She was initially represented by attorney John Wishnew, who died before Markowitz=s claim against Allstate was resolved. She then hired attorney Nikki Carmody. Markowitz and Allstate mediated the claim, during which Allstate offered to settle for $7,000 plus medical coverage of $5,900 for additional surgery to take place within one year of the mediation. Markowitz claims she rejected the offer. Nevertheless, three weeks later Carmody=s office called her and asked what she wanted done with the settlement check. Markowitz instructed Carmody=s office to send the check back to Allstate.

Following this, Markowitz brought suit (through another attorney) against Allstate for her underinsured motorist benefits, breach of the duty of good faith and fair dealing, and negligence. In answer, Allstate urged (among other things) the affirmative defense of accord and satisfaction under the Uniform Commercial Code. In July 1999, Computer Sciences Corporation filed its plea in intervention, seeking to protect trade secrets and confidential information contained in its AColossus@ software program, which Allstate used to assess personal injury damages. In August 1999, the parties stipulated to a detailed agreed protective order concerning CSC=s trade secrets, which was entered of record by the trial court.

In October 2000, on the same day the case was set for trial, Markowitz filed her motion for leave to add an additional defendant, Nikki Carmody, as a necessary party. Markowitz acknowledges that her motion for leave was never heard or ruled upon. Carmody was never served with citation nor did she ever enter an appearance in this case. Moreover, the amended petition upon which she relies, although containing numerous factual allegations about Carmody, never names the attorney as a defendant, alleges no cause of action against her, and does not request that citation issue or service be made upon her.

Although the trial court denied Allstate=s motion for summary judgment on its affirmative defense of accord and satisfaction, it did order that this question be tried separately, prior to any other issue. The jury found that there was an accord and satisfaction by use of an instrument between Allstate and Lynda Markowitz. The court entered judgment for Allstate based on this finding. The document was entitled AFinal Judgment,@ and its decretal portion reads as follows:

IT IS ORDERED BY THE COURT that judgment in favor of Allstate is entered on Allstate=s affirmative defense of accord and satisfaction by use of an instrument.

IT IS FURTHER ORDERED BY THE COURT that Allstate reimburse $7,000.00, plus six percent (6%) interest from November 14, 1998 until the date of this judgment to Plaintiff, Lynda Markowitz. Additionally, it is further ordered by the Court that the finding on Allstate=s affirmative defense of accord and satisfaction is dispositive of all other claims in the case.

All costs of court are taxed against Plaintiff, Lynda Markowitz. All writs and process for the enforcement and collection of this judgment for the costs of court may issue as necessary.

The judgment does not contain a AMother Hubbard@ clause. This judgment was signed on May 24, 2001. On June 21, 2001, Markowitz timely filed her motion to amend or alter the judgment, for judgment n.o.v., and alternatively for new trial. On September 14, 2001, Markowitz filed her notice of appeal and a motion nonsuiting Nikki Carmody. On November 7, 2001, the trial court entered a second AFinal Judgment@ stating that the May 24 judgment Awas not intended and did not address the Plaintiff=s claims against Nikki Carmody . . . and Intervenor Computer Sciences Corporation=s . . . Petition in Intervention.@ The court then entered the following orders, A[i]n order to make this case final for purposes of appeal . . . .@

1. The Court adopts its order and judgment of May 24, 2001 which dealt solely with Allstate=s affirmative defense of accord and satisfaction by use of an instrument and Plaintiff=s claims against Allstate.

2. The Court signed on September 24, 2001, an order of Nonsuit Without Prejudice with regard to Plaintiff=s claims against Carmody which is incorporated in this judgment;

3. The parties= November 5, 2001 Tex.R.Civ.P. 11 agreement which is authored by counsel from CSC and signed and agreed to by counsel for Plaintiff and Defendant Allstate is incorporated into the judgment. All other relief not expressly granted to CSC is denied.

4. Any court costs solely with reference to CSC=s Intervention are taxed against Plaintiff.

The sole question before us is whether the May 24 judgment was final, and therefore this appeal is untimely, or whether the AFinal Judgment@ signed in November was truly the last word on the various parties and the notice of appeal was therefore timely and conferred jurisdiction upon us.

There are two factors in this case which we must examine in determining whether the May 2001 judgment was indeed final: (1) plaintiff=s attempt to amend her suit to include her former attorney, Nikki Carmody, as defendant; and (2) the intervention of Computer Sciences Corporation. We examine them independently.

Attempt to include Nikki Carmody as defendant

We cannot see how Markowitz=s attempt to include Carmody in her lawsuit, made at a time when amending her petition could only be done with leave of court, with her motion to leave never acted upon, could prevent the May 2001 judgment from being final. Markowitz herself acknowledges she was never given leave to add Carmody as a defendant. Moreover, the amended petition which refers to Carmody does not name her as a defendant nor request service of citation upon her. Further, even were Carmody considered a defendant, the judgment disposing of Markowitz=s claim after trial on the merits (albeit a trifurcated trial) was final as to her. Where a judgment disposes of all parties except those who have not been served and have filed no answer, as is the case with Carmody, the judgment is final and the unserved party is considered to have been nonsuited without prejudice. A[S]uch a case >stands as if there had been a discontinuance[1] as to the unserved defendant, and the judgment is to be regarded as final for the purposes of appeal.=@ First Dallas Petroleum v. Hawkins, 715 S.W.2d 168, 169 (Tex. App.--Dallas 1986, no pet.) (quoting Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)). Thus, even if Carmody had been properly added as a defendant in this case, (evidence of which is wholly lacking in the record before us) the May 2001 judgment served as a nonsuit dismissing her from the litigation. We conclude the May 2001 judgment=s failure to mention Carmody did nothing to render it interlocutory.

Intervention of Computer Sciences Corporation

We next turn to the question of whether the May 24 judgment disposed of all remaining claims of intervenor Computer Sciences Corporation. It is true, as Markowitz asserts, that CSC never dismissed its intervention, nor was it mentioned in the May 24 judgment. For the reasons that follow, we nevertheless conclude that these omissions did not render the May 24 judgment interlocutory.

We begin our analysis by again noting that the trial held in this case, although restricted to the accord and satisfaction defense, was nevertheless a trial on the merits. Even though the trial was trifurcated (and two issues of the three-part case were never reached) we see no reason why the general rule on finality of judgments rendered after trial on the merits should not apply. The reason the jury did not reach all issues raised by plaintiff was that the jury found against her on a defense precluding her recovery. See John v. Marshall Health Services, 58 S.W.3d 738, 740 (Tex. 2001) (recognition that Mafrigerule might not rigidly apply to bifurcated trials). We therefore employ the presumption that a judgment rendered after trial on the merits is final and appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199 (Tex. 2001). Having already determined that Carmody was never added as a defendant, we need only determine whether the May 24 judgment impliedly disposed of all CSC=s claims.

CSC=s petition in intervention requested relief only in the form of a protective order for the protection of trade secrets and confidential information. It received all the relief it requested when the agreed protective order was entered. The trial court and all parties were fully aware of the nature of CSC=s intervention, and all stipulated to the terms of the protective order. There was simply no dispute remaining as to CSC (or any other party) which the parties might reasonably expect to be determined after entry of the May 24 judgment. Moreover, nothing about the May 24 judgment indicates that the trial court did not intend it to finally dispose of the entire case. It is entitled AFinal Judgment.@ It disposes of plaintiff=s motion for directed verdict and motion for entry of judgment, as well as defendant=s motion to disregard the jury response regarding rescission. It states that AAllstate=s affirmative defense of accord and satisfaction is dispositive of all other claims in the case.@ It taxes costs against the plaintiff and orders all necessary writs and process necessary for collection of the judgment. Thus, we find nothing to overcome the presumption that it was a final, appealable judgment. That being so, Markowitz had ninety days from May 24, 2001 within which to file her notice of appeal. Tex. R. App. P. 26.1(a). Her notice of appeal was not filed until September 14, 2001, well after that deadline had expired. We therefore lack jurisdiction to consider this appeal.

Conclusion

For these reasons, we dismiss the appeal.

SUSAN LARSEN, Justice

September 5, 2002

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

[1]A discontinuance is indistinguishable from a dismissal without prejudice. First Dallas Petroleum, 715 S.W.2d at 169-70.