Smith Protective Services v. Martin

¶1concurring.

¶2I am unable to fully subscribe to the reasoning of either of my colleagues. I am of the opinion that there was no effectual severance. It follows that there has been no final judgment and that we should deny all relief. I join in the result proposed by my colleague, Justice Guillot, but not the reasoning.

¶3The majority (slip. op. 679-680) and the dissent (slip op. 684) both take the position that the determinative issue is whether a judgment was entered not later than March 19, 1984 which disposed of all issues contained within the “severed” cause, number 84-3, 652. The writer agrees that the outcome of the matter before us turns upon the construction of the January 13 and March 19 instruments. Having agreed on this predicate, the opinions of my colleagues lapse into a dichotomy whether or not Andrew’s joint and several liability upon the conspiracy claim was severed from the parent cause. The writer would avoid the discourse entirely.

¶4The key to this opinion is the fact that neither of my fellow justices can present reasoning of sufficient force to sway the other. The explanation lies in the fact that the documents in question are so inherently obscure that they defy construction with any assurance of correctness. Even if we expanded this panel to ten or a hundred judges, a goodly number would join the position of each of my learned colleagues. In final analysis, the document must be construed as much by fiat as by interpretation.

¶5This writer proposes an entirely different tack. The writer would hold that there is no effectual means to determine with precision which claims were placed within which cause. On this basis, the writer would hold that the severance was ineffectual — void, if you choose, and that no final judgment resulted.

¶6The orders of January 13 and March 19, 1984 are quite similar,1 the major change *682being the omission in March of any reference to stock ownership by Andrew L. Smith. As drafted, the January 13 order was simply entitled “JUDGMENT”, but the title of “Interlocutory Order” was substituted in a hand which is very similar to the trial court’s signature. At the same time, all of the language of that instrument bespeaks a final judgment, including the final provision “that Plaintiff have execution hereon.” Nevertheless, on March 19, 1984, the January order could not have reached a stage of finality where the trial court had no jurisdiction to set it aside. This is so because of the filing of a timely motion for new trial.

¶7Virtually all of the language of the January 13 instrument was repeated in the March 19 instrument. The basics of good legal draftmanship would have required that the March 19 instrument explicitly state if the January 13 instrument were being wholly set aside and if the March 19 instrument were being substituted therefor, but the inference is compelling. This writer would hold that on March 19, the January 13 order was nullified and that it passed out of the case.

¶8By marking out the title to the January order, the trial court equivocated as to finality. By the March order, the equivocation became extreme. If a severance occurred, it was necessarily accomplished by the March order because the January order was no longer extant. However, the March order does not decree a severance; it merely assumes a severance. The title recites an "... ORDER ... OF SEVERANCE”, but the body of the instrument contains no decretal language whatever. The final paragraph does not command or decree a severance; it infers one.

¶9It is easy to glean from the order an intent on the part of the trial court to sever some part of the parent cause into the subsidiary. The absence of clear and direct language to the effect that some part of the whole “be and is hereby severed into a *683separate and independent cause of action” would not be of consequence if the Court had specified that part of the action it intended to sever. Lacking both specificity and decretal language, the severance failed. No final judgment ensued. The whole case against Andrew remains pending in the trial court.

¶10The approach taken in this opinion can be justified on several counts. First, severances are not to be favored. The Courts, both trial and appellate, have a surfeit of lawsuits without needless subdivision of the cases already on file. Severances should only be granted when severance will clearly advance the real objective, the expeditious resolution of the overall litigation. Obviously, the attempted severance now before us has failed the primary objective of all severances.

¶11One of the commonest motivations impelling litigants to ask for severances is to obtain a final default when there are multiple defendants and one or more has answered but another has not. Again, the policy of the law disfavors piecemeal defaults. Otherwise, the severance device would be wholly unnecessary. The “only one single judgment" rule is a creature of the courts, a deeclaration of procedural policy. The courts have wide, almost unlimited power to revise procedure and often do so by fiat. When the policy against piecemeal judgments ceases to exist, it will be a simple matter to revise the rules of procedure to permit final judgments against defaulting co-defendants, all in the same action. While “severance to obtain default” has been recognized, it should also be identified as the exception and contrary to the general rule declaring that defaulting co-defendants will not be finally dealt with until the case against the answering defendants has been dealt with. It follows that the courts should resolve all intend-ments against a party seeking severance for default.

¶12The writer would further point out that ambiguity in severance orders is a recurrent problem for the courts, both trial and appellate. “The line drawn should be bright and clear ...” to avoid the contingency that parties and claims be shunted from one part of a severed action to the other and protect a litigant from exposure to “procedural traps” affecting his right to a determination of his claims upon their merits. See England v. Louisiana State Bd. of Med. Exam., 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d 440 (1964).

¶13Our Supreme Court has held:

[TJhis court [has] stated that in a conventional trial regularly set for trial on the merits, it will be presumed that the court intended to dispose of all parties legally before it as well as all of the issues made by the pleadings.... That rule is correct and sound when applied to conventional trials on the merits with all parties cited and before the court.

There is no presumption in partial summary judgments that the judgment was intended to make an adjudication about all parties and issues.

¶14Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984).

¶15The reasoning of Teeris plain. When a summary judgment fails to clearly express itself as to what has and has not been decided, a presumption against finality is preferable because it leaves the matter within the jurisdiction of the trial court. It retains the power to deal, not only with the omitted matter, but with the whole case. The rights of the parties are not exposed to the contingency that the right of appeal will be cut off before a party apprehends that a final judgment has been entered.

¶16The identical reasoning should be applied to severances, at least to those whose primary objective is to obtain a final judgment with respect to some aspect of the litigation. Where the severance is ambiguous as to what part of the action has been retained in the main case and what part has been transferred into the subsidiary, it better suits the objectives of the law to hold the severance ineffectual. Every aspect of the litigation remains in the main action; nothing is final; the trial court retains the power to sort out the ambiguity in a manner consistent with the ends of justice.

¶17*684This approach is consonant with the established law on default judgments. No presumptions are exercised in favor of a default judgment. Unless the default be taken strictly in conformity with the law, it will be set aside in its entirety if timely attacked. The case must proceed as if the default were never entered. The same rule should be applied to severances, at least those whose primary objective is to make an otherwise interlocutory judgment into a final one.

¶18It is common for a moving party to tender to the trial court a proposed form of order. This is particularly true when a party moves for a default. We do not know whether the plaintiff in this case tendered the January or the March order here in issue or both of them. To explore the matter would be a needless inquiry. Whether or not plaintiff tendered the particular orders, plaintiff was the movant for severance and the party to be benefitted. Plaintiff was the only party present when the orders were signed and plaintiff should be burdened to object, to point out ambiguities and to request of the Court a clear and explicit order of severance. The only way for the courts to ever assure the objective of clear and explicit severance orders is to visit the consequences upon the moving party. It is unarguable that this plaintiff has not secured from the trial court a severance order free from harmful ambiguity. It follows that plaintiff must be deprived of the benefit which plaintiff sought to reap from severance.

¶19I concur in result only. I would hold the attempted severance void. I would hold that no final judgment ensued, that the whole case against Andrew L. Smith, III remains before the trial court, and that all relief sought by relator should be denied.