JAMES HERMES v. JACK LENIGAN AS INDEPENDENT EXECUTOR OF THE ESTATE OF MARGARET ROSINA HERMES--Appeal from County Court at Law No 2 of Victoria County

NUMBER 13-03-116-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

JAMES HERMES, Appellant,

v.

JACK LENIGAN AS INDEPENDENT EXECUTOR

OF THE ESTATE OF MARGARET ROSINA HERMES, Appellee.

On appeal from the County Court At Law No. 2

of Victoria County, Texas.

M E M O R A N D U M O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Garza

Opinion by Chief Justice Valdez

Appellant, James Hermes, appeals from the judgment of the trial court in favor of appellee, Jack Lenigan, as Independent Executor of the Estate of Margaret Rosina Hermes. Because we conclude that the trial judge did not abuse his discretion in denying Hermes s motion for judgment nihil dicit, we affirm the judgment.

Background

Following the death of his mother Margaret, Lenigan filed an application for probate of his mother s estate. With his application, Lenigan submitted a document entitled Last Will and Testament of Margaret Rosina Hermes, which was ostensibly signed by his mother and properly witnessed. Hermes, husband of the deceased, responded by filing a petition to cancel the purported will and counter-application for probate of another, earlier-dated will. Hermes alleges that the will proffered by Lenigan is invalid and void because Margaret s signature had been forged.

While preparing for trial, Hermes and Lenigan entered into three rule 11 agreements, in which they agreed on the identity of expert witnesses, the scope of planned depositions, and the limitation of contested issues for trial to the single issue of the authenticity of the signature on the will. See Tex. R. Civ. P. 11. On the day set for trial, Lenigan appeared and announced ready. Hermes appeared and, informing the court that Lenigan had failed to file an answer, moved for judgment nihil dicit. In response, Lenigan claimed that his failure to file an answer was due to a mistake, and he requested permission at that time to file an answer, which the court granted. Lenigan s answer was filed that day. Counsel for Hermes requested a continuance, as he had not planned to go to trial that day but had instead expected to be granted the judgment nihil dicit based on the opposing party s failure to file an answer. The court granted the continuance.

The trial was re-set and heard before a jury several months later. At the conclusion of the trial, the jury was asked a single question: Do you find from a preponderance of the evidence that Margaret Rosina Hermes did not sign the will dated October 14, 1998? The jury unanimously answered No, and judgment was duly rendered against Hermes. For purposes of maintaining this appeal, the case relating to the validity of the will was then severed from the remaining probate matters involving the administration of Margaret s estate.

Judgment Nihil Dicit

On appeal, Hermes raises two issues: (1) the trial court abused its discretion in failing to grant his motion for nihil dicit; and (2) the trial court abused its discretion in granting Lenigan s motion for leave to file an original answer on the day originally set for trial.

Nihil dicit literally means he says nothing. Black s Law Dictionary 1067 (7th ed. 1999). A judgment nihil dicit is typically limited to situations where (1) the defendant has entered some plea, usually of a dilatory nature, but such plea has not placed the merits of the plaintiff s case in issue, or (2) the defendant has placed the merits of the case in issue by filing an answer, but such answer has been withdrawn. Sharif v. Par Tech, Inc., 135 S.W.3d 869, 872 (Tex. App. Houston [1st Dist.] 2004, no pet.). A judgment nihil dicit is similar to a no-answer default judgment in that, in both instances, it is said that the non-answering party has admitted the facts properly pled and the justice of his opponent s claims. Id. However, the judgment nihil dicit carries a stronger confession than a default judgment, as it is an abandonment of every known defense or any defense which ordinary diligence could have disclosed. Id. (citing O Quinn v. Tate, 187 S.W.2d 241, 245 (Tex. Civ. App. Texarkana 1945, writ ref d)).

We note that the trial court allowed Lenigan to file an answer on the date originally set for trial. Once this answer was filed and received, the trial court clearly could not have granted a judgment nihil dicit, as there was a responsive pleading from the defendant placing the merits of the plaintiff s case in issue. See id. Therefore, the outcome of this appeal must turn on the propriety of the trial court s original decision to allow Lenigan to file an answer on the day originally set for trial.

The trial judge has discretion to control the scope of the proceedings before him, in that he may grant trial amendments, see Tex. R. Civ. P. 66, postpone or continue matters to minimize surprise when new issues are raised, see Tex. R. Civ. P. 66 & 70, or order repleading in order to make pleadings substantially conform to the rules. See Tex. R. Civ. P. 68; see generally Tex. R. Civ. P. 1 (allowing liberal construction of rules of procedure). This discretion is granted to trial judges in order to ensure the primary purpose of the rules of civil procedure is met: obtain[ing] a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. See Tex. R. Civ. P. 1. The purpose of the rules of civil procedure is not to create technical traps for litigants or elevate form over substance, and courts should act to avoid gamesmanship by the parties. See First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 474 (Tex. 2004).

Rule 63 of the Texas Rules of Civil Procedure provides, in relevant part, as follows:

Parties may . . . respond to pleadings or filings of other parties . . . and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided that any pleadings offered for filing within seven days of the date of trial or thereafter . . . shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

Tex. R. Civ. P. 63. Courts have construed rule 63 liberally, so that in the absence of a sufficient showing of surprise by the opposing party, the failure to obtain leave of court when filing a late pleading can be cured by the trial court s consideration of the amended pleading. See Diesel Fuel Injection Serv. v. Gabourel, 893 S.W.2d 610, 611 (Tex. App. Corpus Christi 1994, no writ); see also 29 Gambling Devices v. State, 110 S.W.3d 146, 151 (Tex. App. Amarillo 2003, no pet.). Leave of court to file the late answer is then presumed to have been granted. See Gabourel, 893 S.W.2d at 611.

The evidence in this case demonstrates that Hermes knew Lenigan was preparing to go to trial on the date set and also knew the single issue that was going to be disputed by Lenigan (i.e., the authenticity of Margaret s signature on the will). Hermes had entered into multiple rule 11 agreements referring to both the agreed scope of the litigation and the trial date set. Therefore, Hermes could not legitimately claim that he was surprised or confused when Lenigan, in accordance with his statements in the rule 11 agreements, appeared and announced ready for trial on the date set and filed an answer with a general denial of the allegations in the petition. We further note that Lenigan s answer was a general denial which did not stray from the agreed scope of the litigation or introduce any new issues and, thus, should not have surprised or prejudiced the interests of Hermes.

Furthermore, the evidence shows that Lenigan reasonably believed, because Hermes was opposing the probate of the will introduced by Lenigan, Hermes s petition was a responsive pleading to Lenigan s probate application, and the filing of further pleadings by Lenigan was unnecessary. See Tex. Prob. Code Ann. 10 (Vernon 2003) ( Any person interested in an estate may, at any time before any issue . . . is decided upon by the court, file opposition thereto in writing and shall be entitled . . . to be heard upon such opposition, as in other suits. ) (emphasis added). The case instituted by Hermes was ultimately severed from the original suit involving the probate of the will and now proceeds under section 93 of the probate code. See Tex. Prob. Code Ann. 93 (Vernon 2003) ( After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof. ) (emphasis added). However, this severance did not occur until after the trial had ended. Thus, Lenigan was not unreasonable in mistakenly believing that the filing of an answer was unnecessary, and his immediate admission of his mistake, coupled with his request to file an answer, is demonstrative of his good faith as a litigant. We conclude that because Hermes could not legitimately claim surprise under these particular circumstances, the trial court did not abuse its discretion in allowing Lenigan to file an answer under rule 63. This course of action by the court avoided gamesmanship and allowed the jury to reach and consider the substantive merits of the case. See Martin, 144 S.W.3d at 474.

Hermes also complains that Lenigan filed his answer before requesting and being granted leave by the court to do so. The evidence before this Court only shows that leave to file the answer was granted on the same day that the answer was filed. Nothing in the record indicates which event occurred first. However, even assuming that the answer was filed in the morning before leave to file was granted by the court, as Hermes indicates, we do not find that the short time between the two events is significant. A trial court can be presumed to have granted leave when it considers a late-filed answer even without ever having expressly granted such leave. See Gabourel, 893 S.W.2d at 611. Here, a short time after actually filing his late answer, Lenigan took the additional step of explicitly requesting such leave. We may safely presume from this that the trial court properly considered Lenigan s answer despite its having been filed before leave to do so was expressly granted, as the express decision of the court was not technically necessary for the answer to have been admitted. Therefore, we conclude the trial court did not abuse its discretion when allowing Lenigan to file his original answer. Furthermore, as this answer was non-dilatory in nature and placed the merits of the plaintiff s claims in issue, the trial court also did not abuse its discretion in denying Hermes s motion for judgment nihil dicit.

We accordingly overrule Hermes s two issues on appeal and affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 27th day of January, 2005.