Marcos Wheeler v. William Joseph Earthman--Appeal from 53rd District Court of Travis County

Earthmann IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-280-CV
MARCOS WHEELER,

APPELLANT

 
vs.
WILLIAM JOSEPH EARTHMAN,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 406,108, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING

This is an appeal from a trial court's final order disposing of a cross-action. Unquestioned is the fact that a previous order dismissed the plaintiff's action against the two defendants for want of prosecution. At issue, however, is whether the dismissal of the plaintiff's cause also encompassed defendant's cross-action against his co-defendant. We hold that the cross-action survived the dismissal and that the trial court retained jurisdiction over the action. We also find that the trial court's alternative ruling, granting summary judgment on the basis of res judicata, was in error. Accordingly, we reverse the judgment and remand the cause to the trial court.

 
BACKGROUND

This controversy arises out of a traffic accident involving three individuals, which gave rise to multiple lawsuits in two counties. On October 6, 1985, in Travis County, appellee William Earthman's car struck appellant Marcos Wheeler while Wheeler was driving his motorcycle. Another individual, Noreen Tamminger, was also involved in the accident, but those details are unimportant to the resolution of this controversy between Earthman and Wheeler. In January 1986, Earthman filed suit against Wheeler in Harris County. In October 1986, Tamminger brought a negligence claim against both Wheeler and Earthman in Travis County. Wheeler successfully moved to change the venue of Earthman's suit to Travis County. (1) In September 1987, just before the limitations period ran, Wheeler filed his own negligence claim against Earthman as a cross-action in Tamminger's suit.

The complications arise from the subsequent dismissal of Tamminger's suit for want of prosecution on March 17, 1989. The record indicates that defendant Wheeler, whose cross-action was filed under the same cause number, received notice of the order of dismissal. In February 1990, Wheeler filed a motion to reinstate his cross-action, claiming that he had received notice of the dismissal some twenty-seven days after the order was signed. (2) On February 14, 1990, the trial court reinstated Wheeler's negligence action against Earthman without comment.

Earthman filed a motion asserting two grounds for summary judgment: (1) res judicata, and (2) limitations. (3) First, Earthman argued that the March 1989 order dismissing Tamminger's suit effectively dismissed Wheeler's cross-action against Earthman, which was filed under the same cause number. Wheeler countered that the dismissal of Tamminger's suit for want of prosecution did not simultaneously dismiss his cross-action.

With regard to the limitations defense, Earthman argued that the applicable two-year limitations period could be tolled only upon a showing of Wheeler's due diligence in commencing his suit prior to October 6, 1987, the two-year anniversary of the accident. Wheeler filed his cross-action on September 24, 1987, but did not effect service of his suit on Earthman until May 25, 1990, over two and one-half years later. Earthman says this delay precludes a finding of due diligence sufficient to toll the statute. Wheeler argued that he was diligent in serving process.

After a hearing, the trial court ruled that the entire case, including Wheeler's cross-action, had been dismissed on March 17, 1989. If this determination was correct, the court lost its plenary jurisdiction thirty days later, and thus lacked jurisdiction to rule on the motion for summary judgment. To cover the possibility that its determination about the dismissal of the cross-action was incorrect, the court, in the alternative, granted Earthman's motion for summary judgment solely on the basis of the affirmative defense of res judicata. On appeal, Wheeler attacks the court's decision that it lacked jurisdiction to hear the motion for summary judgment because of the 1989 order of dismissal and the summary judgment in Earthman's favor.

 
ANALYSIS

Although the court's order is styled an order of dismissal, it does not dismiss Wheeler's claims. Rather, it concludes that because of the earlier order of dismissal the court lacks jurisdiction to act upon Earthman's motion for summary judgment. The court then proceeds, in the alternative, to grant summary judgment in favor of Earthman on the basis of res judicata. From this anomalous order, Wheeler brings three points of error.

In points one and three, Wheeler complains that the court erred in granting summary judgment in favor of Earthman, as an alternative to a finding of no jurisdiction. In his second point, he argues that the court erred in ruling that the dismissal of plaintiff's original suit also dismissed Wheeler's cross-action against his co-defendant. We have re-ordered the points of error in order to address first the effect of the previous order of dismissal for want of prosecution on the court's jurisdiction to hear the motion for summary judgment.

Dismissal of the Cross-action.

Wheeler argues that the dismissal of Tamminger's suit in March 1989 did not automatically dismiss his cross-action against Earthman. We agree. In Davis v. McCray Refrigerator Sales Corp., 150 S.W.2d 377, 378 (Tex. 1941), the supreme court stated that "where the court dismisses plaintiff's suit, and does not refer to or mention the defendant's cross-action, the judgment does not dispose of the cross-action expressly or by implication." Though Davis actually dealt with a counterclaim, we believe its rationale applies equally to cross-actions. Nothing in the earlier dismissal for want of prosecution mentions or even alludes to Wheeler's cross-action against Earthman. We hold that the March 1989 order dismissing Tamminger's suit for want of prosecution did not encompass Wheeler's cross-action against Earthman. Because the court erred in ruling that the 1989 order dismissed Wheeler's cross-action, depriving the court of jurisdiction to hear the motion for summary judgment, we sustain the second point of error.

Motion for Summary Judgment.

Finding that the trial court had jurisdiction to hear the motion for summary judgment, we now consider Wheeler's points of error attacking the summary judgment in favor of Earthman. The court granted summary judgment solely on the ground of res judicata. Wheeler has failed to attack this ground specifically, but we will read broadly his first point of error in order to consider the error in granting summary judgment on that ground. O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex. 1976). For res judicata principles to apply, a previous adjudication must have taken place. An order of dismissal does not constitute an adjudication on the merits. Gracey v. West, 422 S.W.2d 913, 917 (Tex. 1968); Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962). Even if the cross-action had been dismissed, no previous adjudication existed upon which to preclude this claim on the basis of res judicata. The trial court erred by granting summary judgment on an improper application of res judicata.

Having sustained Wheeler's first point of error to find that no previous adjudication precludes this action, we need not consider the remaining challenge to the summary judgment.

CONCLUSION

We sustain Wheeler's point that it was error to find that the previous order dismissing plaintiff's cause for want of prosecution also dismissed Wheeler's cross-action when that order made no reference to defendant's cross-action. And we sustain Wheeler's point of error complaining of the court's specific award of summary judgment on the basis of res judicata. We reverse the trial court's order and remand this cause for further proceedings consistent with this decision.

 

Bea Ann Smith, Justice

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

Reversed and Remanded

Filed: April 8, 1992

[Do Not Publish]

1. On March 30, 1989, the Harris County district court transferred Earthman's action against Wheeler to Travis County. Subsequently, in February 1990, Wheeler successfully moved to consolidate Earthman's action with Wheeler's cross-action.

2. In fact, the record indicates that the order of dismissal was signed on March 17, 1989, and that Wheeler claimed to have received notice on March 27th, within ten days of the order's signing.

3. In the interim, Earthman had taken a nonsuit in his action against Wheeler; thus, his summary judgment motion consisted only of affirmative defenses avoiding Wheeler's recovery.