ERIC CHARLESTON BRYANT,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00389-CR
 
ERIC CHARLESTON BRYANT,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, KINKEADE AND OVARD
OPINION BY JUSTICE OVARD
MARCH 23, 1989
        Appellant, Don R. Averitt, appeals from a denial of a motion for new trial, and seeks to set aside a default judgment. This suit arose when Averitt allegedly bought goods on credit from appellee, Bruton Paint & Floor Company (Bruton) and then did not pay for the items. Bruton filed suit on a sworn account against Averitt for the price of the goods.
        Averitt contends that the trial court abused its discretion in denying his motion for new trial because there was uncontroverted evidence that he had not received notice of the hearing on the motion to compel discovery. We agree. Because this point is dispositive of the appeal, we need not address Averitt's other point. We set aside the default judgment and remand this case for a rehearing on the motion to compel.
        During the pendency of the case in the trial court, Averitt obtained three different attorneys. to try title, removal of cloud from title, slander of title, breach of fiduciary relationship, fraud, for imposition of a constructive trust, removal of Ginsberg as Trustee, for actual and punitive damages, and for an accounting. Gaynier complains of Ginsberg, individually, and doing business as a general partner in 505 North Ervay Building, a partnership or joint venture, and as trustee under the will of William M. Gaynier, deceased, as well as his successors in title to the property which is in part the subject of this litigation.
        In sum, Gaynier contends that the two deeds in Ginsburg's chain of title are void or, in the alternative, voidable. The first deed, dated January 3, 1972, purportedly signed by Gaynier's deceased husband, is alleged to be a forgery. The second deed, dated March 27, 1972, signed by appellant, purports to ratify and confirm the January 3, 1972 deed. Mrs. Gaynier claims no knowledge of executing the March 27, 1972 deed, nor the existence of either deed until 1981, and she claims that the March deed was executed and signed by her as a result of fraud and breach of fiduciary duty owed to her by her attorney, Ginsberg.
        Although this case has been pending since 1981, Gaynier has yet to have her day in court before a jury. 1984 and 1985 were consumed in the appellate courts litigating discovery disputes. See Gaynier v. Johnson, 673 S.W.2d 899 (Tex. App.--Dallas 1984), overruled sub nom., Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105 (Tex. 1985). Following resolution of the discovery issues, the court below granted a summary judgment. Gaynier appealed and this Court reversed and remanded the case for trial. Gaynier v. Ginsberg, 715 S.W.2d 749 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). On the eve of trial, after the case had been pending in the district court for six years, appellees filed their "Plea to Jurisdiction, Motion to Dismiss, and, in the Alternative, Plea in Abatement." The record reflects that on November 6, 1987, the trial court judge granted the motion to dismiss.
        Article five, section eight of the Texas Constitution as amended in 1973 provides that "the district court, concurrently with the county court, shall have the general jurisdiction of a probate court. It shall . . . transa (Tex. Crim. App. 1987), on remand, 745 S.W.2d 94, 96 (Tex. App.--Eastland 1988, pet. granted); Mills v. State, 720 S.W.2d 525, 526 (Tex. Crim. App. 1986); McCambridge v. State, 712 S.W.2d 499, 501-07 (Tex. Crim. App. 1986).
        Having found error, I would then determine whether the error was harmless. The test which must be applied is whether this Court can conclude beyond a reasonable doubt that the error made no contribution to the conviction or punishment. TEX. R. APP. P. 81(b)(2). I cannot say beyond a reasonable doubt that the erroneous admission of the audio portion of the videotape made no contribution to the conviction. Because I would sustain Chadwick's second point of error, there would be no need to reach his remaining points of error. I would reverse judgment of the trial court and remand the cause for a new trial.
 
 
BILL J. STEPHENS
JUSTICE
 
 
Pdingly, we overrule Gaynier's second point of error.
        In view of the fact that this dispute has been festering for nearly seven years, it is time this litigation be concluded as soon as possible. The cause is remanded toion, and plaintiff is entitled to recover.
        I submit that the court in my analogy employed an incorrect legal analysis. In my analogy, the court needed to look at the law, not the jury answer, to determine whether proximate cause was an element of a negligence cause of action. In the present case, the majority needs to look at the city ordinance, not the jury answer, to determine whether the city ordinances draw a distinction between a service line connection and a main line extension for purposes of reimbursements.
THE BURDEN OF PROOF
        McFarland alleged that the McDonald's line was a "service line" within the definition of the city ordinances. The city denied that the McDonald's line was a "service line" and, relying on the city ordinances, argued that the McDonald's line was in fact a main line extension. The majority holds that because it was the city that raised, argued, and relied upon the distinction between service lines and main lines, the city asserted a defensive theory that shifted the burden to the city to submit the appropriate issues to the jury, and the majority argues that because the city did not submit any issues on this defensive theory, the city has waived it. I disagree.
        McFarland arrives at his conclusion that the McDonald's line is a "serviceehearing of the motion to compel.
                                                  
                                                  JOHN OVARD
                                                  JUSTICE
 
 
PUBLISH
TEX. R. APP. P. 90
88-00172.F
 
Dissenting opinion by Justice Kinkeade.are "service lines" within the city ordinances' reimbursement provisions. As the plaintiff, McFarland has the burden of proof. The city denied that the McDonald's line was a "service line." A general denial does not change the burden of proof. TEX. R. CIV. P. 279 (Vernon 1977). FN:1 Therefore, the burden of proving that the McDonald's line was a "service line" remained with McFarland.
        Relying upon the city ordinances, the city argued that the McDonald's line was actually a main line extension, which is distinct and separate from a service line connection. The city's argument rebuts McFarland's contention that the McDonald's line is a service line; consequently, the city's argument still falls within a general ddingly, we overrule Gaynier's second point of error.
        In view of the fact that this dispute has been festering for nearly seven years, it is time this litigation be concluded as soon as possible. The cause is remanded to the trial court with instructions to reinstate and to expedite.
 
                                                  
                                                  BILL J. STEPHENS
                                                  JUSTICE
 
PUBLISH
TEX. R. APP. P. 90
88-00123.Fthat is inconsistent with some factual element of the plaintiff's ground of recovery. Select Insurance
 
FN:1 The present case was tried before amended rules 277, 278, and 279 became effective.
File Date[01-02-89]
File Name[880389]