Phillips v. Cartwright

DOYLE, Justice,

dissenting.

I respectfully dissent. The majority has predicated its opinion on the premise that LeRoy LaSalle filed a controverting affidavit to relators’ affidavits of inability to give security for costs on November 1,1982, and that this is the date from which calculations should be made in testing the timeliness of the court’s ruling under Rule 355(e), T.R. C.P.

The record shows that the relators filed their affidavits of inability to give security for costs on October 21,1982. The opposing parties timely filed their contests. LeRoy LaSalle, the real party in interest, originally *68 filed his contest through his attorney of record on October 28, 1982. The district clerk’s office filed its contest on October 29. A hearing was set for November 8, within ten days from October 29. On that date the court rescheduled the hearing to November 19 because attorneys LaSalle and Pike were busy with other cases.

I will first consider if there were a “filing” on November 1, 1982. The majority opinion states that “On Monday, November 1, 1982, Ernest L. Sample’s contest was refiled at 2:38 P.M. with the note “Copies original lost ” with the District Clerk, Harris County, Texas, ...” To me this reasons to only one conclusion: Since the original controverting affidavits had been lost or misplaced, Mr. LaSalle was furnishing copies in their stead for the record. It is undisputed that the originals were filed on October 28. These were not new affidavits, but copies of the instruments filed on October 28. The date “November 1, 1982,” merely showed the date that the replacements were left with the District Clerk’s Office. (Emphasis mine) There was no necessity to notify opposing counsel or to send copies, since this had been done on October 26, 1982. Therefore, I conclude that October 29 is the latest filing date of the controverting affidavit. It was incumbent upon the trial judge to hold a hearing and make a ruling by November 8. Having failed to do this, the allegations of the relators’ affidavits shall be taken as true. Rule 355(e), T.R.C.P., Guetersloh Grain, Inc. v. Wright, 618 S.W.2d 135 (Tex.Civ.App.—Amarillo 1981, no writ); Ranier v. Brown, 623 S.W.2d 682 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ).

I can see no significant difference between the facts here and those in Gueter-sloh Grain, Inc., supra, where the opposing parties filed contests to the affidavit on April 8, 1981 and the hearing was set for May 1, 1981, some twenty-three days later. There at the hearing, as in our case, the relators elected not to put on any evidence. In reversing the trial court’s order sustaining the contests, Justice Countiss wrote:

Thus under Rule 355(e) the trial court was required to rule on the contests within ten days or accept the allegations of the affidavit as true. It did neither. Therefore, the order sustaining the contest of the affidavit is a nullity and Relator is entitled to mandamus relief in this court.

I do not reach the question of the merits of the hearing held on November 10, 1982. Under Rule 355(e) and the authority of the cases cited above, the trial judge had lost jurisdiction by November 10 and the hearing he held was a nullity.

The majority opinion seems to indicate that there was some justification for the postponement of the scheduled hearing of November 8 to November 10 because the two attorneys of record in this cause were in trials outside of Harris County. While it is true that the trial judge had the authority to reschedule the hearing at any time within the ten day period, it had absolutely no discretion to set the hearing for a date beyond such period because of the mandatory terms of Rule 355(e).

I would issue the writ of mandamus and order the district clerk to prepare the transcript without the payment of costs or security by the relators as provided for in Rule 380, T.R.C.P.