Rogers v. Clinton

794 S.W.2d 9, 1990 WL 79072

• Court: Texas Supreme Court
• Decided: September 6, 1990
• Docket: C-8847
• Status: Published

Opinions

OPINION

MAUZY, Justice.

This mandamus proceeding is unusual because it is filed by the plaintiffs and the defendant in the underlying suit. Relators Keith Dennis Rogers, Stacy Rogers, and Joe Taylor Sams seek a writ of mandamus directing the trial judge to vacate his order granting a new trial. We conditionally grant the writ.

Keith Rogers was injured in a one-car accident in Lubbock County in April 1987. The driver of the car was Joe Sams. Keith and his wife, Stacy, retained an attorney who, prior to filing suit against Sams, offered to settle with Sams’ insurer, Truck Insurance Exchange (TIE), for $185,000. TIE did not accept the offer.

The Rogerses then filed a negligence action against Sams. Although TIE was timely notified of the suit, it failed to file an answer on Sams’ behalf. On January 17, 1989, the trial court rendered a default judgment against Sams for $975,000. Upon learning of the default judgment, Sams contacted TIE, which informed him for the first time that it questioned his insurance coverage. Despite the coverage question, however, TIE retained two attorneys, Philip W. Johnson and George L. Thompson, who filed a motion for new trial on Sams’ behalf on February 15, 1989. A hearing on the motion was scheduled for 9:00 a.m., March 24, 1989.

On March 22, 1989, TIE notified Sams that it accepted coverage up to the policy limit of $500,000 and that it might not post a supersedeas bond for the entire $975,000 judgment if the motion for new trial were overruled. In other words, Sams was faced with the possibility of having to post a supersedeas bond for $475,000 or risk execution on his assets. Thus, by the close of March 22, Sams had good cause to be dissatisfied with the representation afforded by TIE.

At 8:40 a.m., March 24, 1989, Sams’ individual attorney, Delwin McGee, filed with the clerk of the district court (1) a designation of counsel, pursuant to Tex.R.Civ.P. 8, signed by Sams, designating McGee as lead counsel for Sams and giving notice that the attorneys retained by TIE¹ had been discharged and (2) a notice that Sams was withdrawing his motion for new trial. Also at 8:40 a.m., Sams and the Rogerses signed a “settlement agreement” whereby Sams assigned to them any rights and claims he had against TIE in exchange for their covenant not to execute on Sams’ personal assets until all reasonable efforts were made to collect the default judgment from TIE.

When the motion for new trial was called for hearing at 9:00 a.m., Sams informed the court of his change of counsel and the withdrawal of his motion for new trial. Nevertheless, over the objections of Sams and the Rogerses but at the insistence of the attorneys retained by TIE, the trial court considered the motion. On March 28, 1989, the trial court signed an order purporting to set aside the default judgment and to grant the now-withdrawn motion for new trial.

On May 9, 1989, the trial court, without notice to relators, signed a nunc pro tunc order purporting to add the following paragraph to the March 28 order:

Under the provisions of Rules 329b(a), (b), (c) and (e), TEX.R.CIV.P., and under the inherent and other authority of the Court granted by law ..., the judgment signed in this matter on or about January 17,1989, is in all things set aside and a new trial is granted....

Relators urge that Sams had an absolute right to withdraw his motion for new trial at the time he did, and that thereafter the district court was without authority to set aside the default judgment and order a new trial. We agree.

We have held repeatedly that “a plaintiffs right to nonsuit of its own action exists at the moment a motion is filed, and that the only requirement is the mere filing of the motion with the clerk of the court.” Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex.1990); see also Greenberg v. Brookshire, 640 S.W.2d 870 (Tex.1982). Analogously, a defendant’s right to file a motion for new trial must certainly carry with it the right to withdraw that motion at any time before it is heard. A defendant must have the right to control his own defense. See also 60 C.J.S. Motions and Orders § 41 (1969).

TIE argues that even if the motion for new trial was effectively withdrawn, the district court still had the authority, under Texas Rule of Civil Procedure 329b, to order a new trial sua sponte. The plain wording of the rule, however, belies this argument. Rule 329b provides in relevant part:

(c) In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.

(d) The trial court, regardless of whether, an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.

(e) If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed motions are overruled either by a written and signed order or by operation of law, whichever occurs first.

(f)On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court’s plenary power had expired.

(Emphasis added.)

A careful reading reveals that Rule 329b does not speak to the situation presented in this case, that is, one in which a party has withdrawn a motion for new trial as opposed to waiting until it is overruled. To interpret the rule as urged by TIE would ignore its plain content. This we are unwilling to do. See Heard v. Heard, 305 S.W.2d 231 (Tex.Civ.App.—Galveston 1957, writ ref’d). Rule 329b, as presently written, does not authorize a trial court to order a new trial when the movant has deliberately withdrawn his motion and more than 30 days have passed since the judgment was signed.

In the recent case of Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989), the Court of Criminal Appeals held that respondent trial judge exceeded his authority in discharging the defendant’s court-appointed counsel over the defendant’s objection. The court noted that the trial judge, in justifying his action, “made ... comments that were both illogical and unreasoned.” 780 S.W.2d at 224. In the instant case, the trial judge has again exceeded his authority and then tried to justify his action by issuing, without notice or hearing, a void nunc pro tunc order.

Because the district court, in ordering a new trial, went beyond its lawful authority and thereby abused its discretion, a writ of mandamus is the appropriate remedy. McCormack v. Guillot, 597 S.W.2d 345 (Tex.1980); Buttery v. Betts, 422 S.W.2d 149 (Tex.1967). “Relators are entitled to their final judgment ... without establishing that right after a needless retrial and an appeal.” Buttery at 151. We expect that the district court will vacate its order for new trial. The writ will issue only if the court refuses to do so.

1 . Although a client may discharge his attorney at any time even without cause, see Hume v. Zuehl, 119 S.W.2d 905 (Tex.Civ.App.—San Antonio 1938, writ ref'd), an attorney may withdraw from representation of a client only if he satisfies the requirements of Tex.R-Civ.P. 10.