Owens Corning, et al. v. General Lee Cole, et al.--Appeal from 128th District Court of Orange County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00703-CV
Owens Corning; American Optical Corporation; BOC Group, Inc.; Dressor Industries,

Inc.; Hobart Brothers Company; John Crane, Inc.; The Lincoln Electric Company;
Westinghouse Electric Corporation; and W. R. Grace & Co.-Conn., Appellants
v.
General Lee Cole; Doris Virginia IsBell, individually and as Executrix of the estate of
Tyers Raymond IsBell, deceased, and as representative of the wrongful death
beneficiaries; Lidge Lambert; Eunice Earline Wright, individually and Charles
Wright, individually and as Executor of the estate of James Winston Wright,
deceased, and as representative of the wrongful death beneficiaries;
Juanita Cole; LeNelle Hardy; and Dorothy Lambert, Appellees
FROM THE DISTRICT COURT OF ORANGE COUNTY, 128TH JUDICIAL DISTRICT
NO. A-920961-S, HONORABLE PATRICK A. CLARK, JUDGE PRESIDING
PER CURIAM

This is an attempted appeal from a judgment rendered in favor of appellees General Lee Cole, et al. The "Interlocutory Judgment" signed on July 24, 1997 provides as follows:

 

The Court, in a bifurcated trial, submitted the issue of the amount of punitive damages that should be awarded as against defendant, North American Refractories Company and defendant, Owens Corning. However, the jury remained hopelessly deadlocked and was unable to deliver a monetary damage verdict in regards to punitive damages. The Court orders a mistrial in regards to the issue of punitive damages only in regards to Owens Corning and North American Refractories Company and orders a new trial on the liability regarding punitive damages and the amount of punitive damages only as it relates to defendants, Owens Corning and North American Refractories Company only. The court will then reform this judgment to reflect any punitive damages awarded against Owens Corning and/or North American Refractories Company. This will then render this judgment final as to Owens Corning and/or North American Refractories Company. [emphasis added].

 

Following additional language, the judgment concludes with a Mother Hubbard clause.

Texas Rule of Civil Procedure 174 authorizes a separate trial on punitive damages. See Greater Houston Transp. v. Zrubeck, 850 S.W.2d 579, 587 (Tex. App.--Corpus Christi 1993, writ denied). However, we note that because there has been no severance of the bifurcated issue pursuant to Rule 41, the judgment is by its nature interlocutory. Thus, when considered in its entirety, we conclude that the trial court's judgment is not final and appealable because it requires future action by the trial court to settle the entire controversy. See Wagner v. Warnasch, 295 S.W.2d 890, 892 (Tex. 1956). Moreover, a judgment that leaves any of the issues in the case open for later decision is interlocutory and not appealable. Hall v. City of Austin, 450 S.W.2d 838 (Tex. 1970); Beavers v. Beavers, 651 S.W.2d 52, 53 (Tex. App.--Dallas 1983, no writ). Appellees' motion to dismiss this appeal is granted and their request for damages is denied.

 
CONCLUSION

This appeal is hereby dismissed for want of jurisdiction.

 

Before Chief Justice Carroll, Justices Jones and Kidd

Dismissed for Want of Jurisdiction

Filed: December 18, 1997

Do Not Publish

DY TEXT="#000000" LINK="#0000ff" VLINK="#551a8b" ALINK="#ff0000" BGCOLOR="#c0c0c0">TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00703-CV
Owens Corning; American Optical Corporation; BOC Group, Inc.; Dressor Industries,

Inc.; Hobart Brothers Company; John Crane, Inc.; The Lincoln Electric Company;
Westinghouse Electric Corporation; and W. R. Grace & Co.-Conn., Appellants
v.
General Lee Cole; Doris Virginia IsBell, individually and as Executrix of the estate of
Tyers Raymond IsBell, deceased, and as representative of the wrongful death
beneficiaries; Lidge Lambert; Eunice Earline Wright, individually and Charles
Wright, individually and as Executor of the estate of James Winston Wright,
deceased, and as representative of the wrongful death beneficiaries;
Juanita Cole; LeNelle Hardy; and Dorothy Lambert, Appellees
FROM THE DISTRICT COURT OF ORANGE COUNTY, 128TH JUDICIAL DISTRICT
NO. A-920961-S, HONORABLE PATRICK A. CLARK, JUDGE PRESIDING
PER CURIAM

This is an attempted appeal from a judgment rendered in favor of appellees General Lee Cole, et al. The "Interlocutory Judgment" signed on July 24, 1997 provides as follows:

 

The Court, in a bifurcated trial, submitted the issue of the amount of punitive damages that should be awarded as against defendant, North American Refractories Company and defendant, Owens Corning. However, the jury remained hopelessly deadlocked and was unable to deliver a monetary damage verdict in regards to punitive damages. The Court orders a mistrial in regards to the issue of punitive damages only in regards to Owens Corning and North American Refractories Company and orders a new trial on the liability regarding punitive damages and the amount of punitive damages only as it relates to defendants, Owens Corning and North American Refractories Company only. The court will then reform this judgment to reflect any punitive damages awarded against Owens Corning and/or North American Refractories Company. This will then render this judgment final as to Owens Corning and/or North American Refractories Company. [emphasis added].

 

Following additional language, the judgment concludes with a Mother Hubbard clause.

Texas Rule of Civil Procedure 174 authorizes a separate trial on punitive damages. See Greater Houston Transp. v. Zrubeck, 850 S.W.2d 579, 587 (Tex. App.--Corpus Christi 1993, writ denied). However, we note that because there has been no severance of the bifurcated issue pursuant to Rule 41, the judgment is by its nature interlocutory. Thus, when considered in its entirety, we conclude that the trial court's judgment is not final and appealable because it requires future action by the trial court to settle the entire controversy. See Wagner v. Warnasch, 295 S.W.2d 890, 892 (Tex. 1956). Moreover, a judgment that leaves any of the issues in the case open for later decision is interlocutory and not appealable. Hall v. City of Austin, 450 S.W.2d 838 (Tex. 1970); Beavers v. Beavers, 651 S.W.2d 52, 53 (Tex. App.--Dallas 1983, no writ). Appellees' motion to dismiss this appeal is granted and their request for damages is denied.

 
CONCLUSION

This appeal is hereby dismissed for want of jurisdiction.

 

Before Chief Justice Carroll, Justices Jones and Kidd

Dismissed for Want of Jurisd