*1
9
wrongful
remands the
conspicuous enough
give
fair
notice
portion
the indemnitor.
death claim. We reverse
involving
appeals’ judgment
the court of
contrast,
By
language
the contract
in
indemnity
and affirm the
claim
Goodyear Tire and Rubber Co. v. Jeffer
awarding Enserch
ment of the
trial-
(Tex.
Co.,
your acceptance strictly limited herein,
terms and conditions stated includ terms and conditions stated on Id. at side hereof.” 920. We reverse indemnity provision
held in Good enough to
year conspicuous give fair was ROGERS, Rogers, notice Id. Stacy of its existence. and Joe Keith Relators, Sams, Garza, 331 Rourke 1974), (Tex.Civ.App. [1st Dist.] — Houston (Tex.1975), aff'd, the court CLINTON, Hon. Thomas appeals indemnity provi determined Respondent. Judge, sions side appearing on the back of a deliv No. C-8847. ery conspicuous order were not so as to give the existence in fair noticе of of an Supreme Texas. Court of Id., demnity agreement. refused That court also to enforce June indemnity language Safway in Scaffold 6, 1990. Rehearing Sept. Overruled Inc., Prod., Co. v. Safway Steel (Tex.Civ.App. [1st Dist.] — Houston n.r.e.). writ ref 'd indem Safway nity language appeared on the back
rental form and was un surrounded in small light type.
related terms
Therefore, the court held that indemni
ty provision conspicuous and was
unenforceable. Id. at 228.
The entire contract between Enserch and page; of one
Christie consists the indemni-
ty language is on the front side separate not hidden under
contract and is exculpatory language
heading. The
the indemnity language, although con- sentences,
tained separate appear in to-
gether paragraph in the same and the in- language is
demnity not surrounded
completely Consequent- unrelated terms.
ly, language indemnity sufficiently
conspicuous to afford “fair notice” of its
existence. appeals of the court part part. and reversed
affirmed We portion appeals’
affirm that *2 $975,000 supersedeas
a the entire bond for judgment if the motion for new trial were words, was overruled. other Sams having post possibility faced with $475,000 or risk supersedeas bond for Spivey, Paul Knisely, Broadus A. E. Aus- Thus, by execution on his assets. the close McGee, Dumas, tin, Delwin T. for relators. 22, good cause to be of March Sams had Wharton, Johnson, Philip L. James W. afford- representation with the dissatisfied Thompson, Lubbock, George L. for TIE. by ed dent. a.m., 24, 1989, indi- At 8:40 March Sams’ McGee, filed attorney, Delwin vidual
OPINION (1) designa- the clerk of the district court 8, counsel, pursuant to Tex.R.Civ.P. tion MAUZY, Justice. Sams, designating lead signed by McGee as рroceeding This mandamus is unusual giving for and notice that the counsel Sams plaintiffs it by because is filed and TIE1 dis- attorneys by retained had been defendant in the suit. Relators (2) charged and a notice that Sams was Rogers, Stacy Rogers, Dennis Keith withdrawing trial. Also his motion for new Taylor seek a of mandamus Joe Sams writ a.m., Rogerses signed at 8:40 Sams and the directing judge the trial to vacate his order whereby agreement” “settlement Sams conditionally a new trial. We he assigned any rights to them and claims grant the writ. against exchange TIE in for their cove- had Rogers injured in a one-car Keith was personal not to on Sams’ as- nant execute County April 1987. accident Lubbock made all efforts were sets until reasonable car Keith driver was Joe Sams. from TIE. collect the default wife, attorney Stacy, and his retained an for new trial called When the motion was Sams, who, against of- prior to suit a.m., informed the hearing at 9:00 Sams for insurer, Truck fered to settle with Sams’ change and the of counsel court (TIE), $185,000. Exchange Insurance for new trial. оf his motion withdrawal accept TIE the offer. did not Nevertheless, objections of Sams over the negligence Rogerses then filed a ac- insistence of Rogerses but at the and the TIE against Although was Sams. TIE, by the trial attorneys retained suit, it failed to file timely notified of the 28, On March the motion. court considered January an On answer on Sams’ bеhalf. pur- order signed court an the trial 17, 1989, a default the trial court rendered default porting to set aside the $975,000. against Sams motion for grant the now-withdrawn and to Upon judgment, learning of the default TIE, him Sams contacted informed 9, 1989, without May On questioned for the first time that it relators, pro nunc tunc signed a coverage notice to coverage. Despite insurance following para- purporting to add the order question, TIE retained two attor- the March 28 order: Philip George graph L. neys, W. Johnson and Thompson, who filed a motion for 329b(a), Rules provisions Under February on on Sams’ behalf 1989. TEX.R.CIV.P., (c) (e), and under (b), hearing the motion on was scheduled for authority other inherent and a.m., March 9:00 ..., grаnted by law Court Janu- 22, 1989, in this matter on or about TIE
On March
notified Sams
17,1989,
things set aside
coverage up
ary
is in all
accepted
policy
that it
to the
$500,000
might
granted....
post
and that it
trial is
limit
ref'd),
attorney
attorney
withdraw
Although
may discharge his
io
writ
a client
cause,
only
he satis
representation
a client
if
see Hume v.
at
time even without
from
Zuehl,
(Tex.Civ.App.—San
requirements of Tex.R-Civ.P. 10.
ton
fies the
H
law,
operation
whichever
Sams
an absolute
urge
Relators
occurs first.
right to
his motion for
withdraw
did,
(f)On
the time he
and that thereafter the
expiration
time within
authority to
plenary power,
without
set
trial court has
district
which the
and order new
be set aside
aside
default
cannot
except
bill
agreе.
We
review
*3
cause, filed within the time
sufficient
repeatedly that
We have held
“a
law; provided
by
that the court
allowed
right
own
plaintiffs
to nonsuit of its
action
error
may
any time correct a clerical
at
filed,
at the
a
is
and
exists
moment motion
a judgment
in
and render
the record
only requirement
the mere
that
is
pro
under
judgment nunc
tunc
Rule
the motion with the clerk of
court.”
sign
declaring a
also
an order
Abu-Ahmad,
Apts. v.
783
Shadowbrook
to
previous judgment or order
be void
(Tex.1990);
211
see also
signed
plenary
because
after
Brookshire,
Greenberg
neously divests a trial court thirty after the until judgment. to reconsider a default 329b(d). filing of signed. *4 during initial this a motion for new This original proceeding mandamus con- juris court’s thirty day period extends the ple- of a trial court’s cerns the boundaries days thirty until judgment diction over the The issuе is whether a nary jurisdiction. timely filed motions for new after all jurisdiction judg- over its trial court retains 329b(e). If the are overruled. Tex.R.Civ.P. following a any period of time ment the motion for does not act on trial court timely filed party’s election to abandon a is deemed writing, the motion court holds that motion for new trial. This seventy-five of law by operation overruled respondent jurisdiction trial court lost the signed. after the the movant Tex. its at the instant over 329b(c). motion Even when the pending filed his motion to withdraw R.Civ.P. of trial because the initial motion for new for new trial is overruled jurisdiction had thirty day period plenary law, trial court retains the its elapsed by that time. The court reaches thirty for an additional by analogy principles govern- conclusion Berry, days. Philbrook ing govern- rule nonsuits and because the Kelton, 569 (Tex.1985); Mathes v. specifi- trial does not motions (Tex.1978); Transameri in this cally explain should be done what Bears, Inc., 567 Leasing v. Three can Co. the framework situation. dissent because period 799, 800 Procedure сreated Texas Rule Civil jurisdiction therefore plenary court’s a trial trial court clearly indicates that the 329b long as thirty days or as as short as can be plenary jurisdiction over retains depending on days, one hundred and five following period ment for a ifor filed and when a motion is whether trial. disposition motion for new Rule operаtion of on it. The the court acts Furthermore, analogy to I find the court’s perfectly clear thus makes it 329b inapplicable. principles of nonsuit juris plenary original thirty day period A trial court retains for a limited time timely by the pushed forward diction aside, power modify, to set or inherent trial and com filing of a motion for ne amend its finаl “without the the on the date running either mences cessity of a formal written or oral motion seventy-five motion on the court acts incorporated by party, or for reasons not judg the final signing of days after McDonald, duly filed.” 4 R. in a motion occurs first. ment, whichever (F. 18.03 at 266 Practice Texas Civil § the defendant underlying cause In the 1984); Smith, Spikes v. Elliott rev. see also motion for new timely filed withdrew (Tex.Civ.App. Corpus — plenary during period of extended orig. proceeding); Christi Tex.R. 329b(e). jurisdiction. See period of the trial 320. This is the Civ.P. the motion apparently views This court and the discre plenary jurisdiction expunction to an judg as tantamount over its withdraw exercised the court sense, 1989). during Be- In a original motion for new trial.1 belongs expressly plenary jurisdiction address cause the'rule does not dis situation, and it retains broad court concludes we must to the trial this determining or not the day period whether original thirty cretion fall back to by a new justice result will be served plenary jurisdiction. The here is ends reconsidering its act Surely a court court lost over its judgment must be granting the movant indi- of a default judgment at the instant greatest latitude. given his motion for cated his desire abandon per- majority apparently A the trial court’s order The court’s rationale this result ceives upon intrusion right to abandon a motion trial as an unwarranted party’s that a I, controversy.2 right to settle this analogous parties trial is to a for new absolute differently. Although I see it plaintiff’s right to take a nonsuit. right to endorse the defendant’s withdraw court writes that the movant “had the ab- trial and settle the for new his motion for new solute to withdraw his motion litigation did, controversy, parties to the trial at the time he and that once he unwilling cannot make the triаl court an had done so the district court was without bargain. participant in the settlement authority to set aside the default words, parties free to 11. other are not and order a new trial.” 794 S.W.2d reasoning by analogy bargain judgment. the trial court’s The court’s is invalid. agreement settlement cannot be used as gov Texas Rule of Procedurе 162 Civil *5 the trial court’s mechanism to terminate plaintiff erns nonsuits and authorizes a to plenary power thereby wrest control of plaintiff take one time before the “[a]t the court. I be- judgment away the from has introduced all of his other evidence par- permitting errs in the lieve this court than rebuttal evidence.” The comment to in this manner. The ties to use Rule 329b recent the most amendment of this rule to at least two better inter- rule lends itself purpose notes that the rule’s is to fix a pretations. definite after party may time which a First, nonsuit a the act of with- might cause action. Under the facts construe we case, underlying long drawing trial as the func- the time had a motion new passed denying since plaintiff equivalent for the to take a of a written order tional nonsuit the analogy interpretation for the to the motion. this defendant Under abandon plenary jurisdiction some defensive extend matter. Further court’s would more, filing the the period nonsuit rule relates to claims or for a after action; causes of formal motion to withdraw. the situation the court of movant’s analogous Alternatively, might apply finds subsection Upon entry does not. we (c) provides the default of the rule that a motion in the which cause, trial, plaintiff’s merged the has not been deter- claims were new which replaced into and in his mined written order within sev- the following judgment, con- enty-five days favor. From point that forward by operation court’s sidered of law. overruled over 329b(c). applica- this during attached and the trial Under period possessed grant consequence party court the power to tion of the inherent justice. withdrawing new trial in the his motion for new trial interest of See Champion that there be no written order on the Corp. International will Twelfth (Tex. motion, Appeals, likely Court and it most be deemed will prior 1. I assume the court that the 2. The court also alludes to a cause over does not mean truly expunged motion for new trial is as this respondent judge presided. the might adversely impact appeal. party’s is irrelevant to the matters court’s reference bond, appeal perfected by filing appeal An unnecessary disposi- us and to the court’s before dependent but the time for it is on wheth- tion. aer motion for new trial has been filed. TEX. 41(a)(1). R.APP.P. seven- settle for this overruled of law after to amount. period, plaintiff is five times what
ty-fivе days. During this therefore thte his claims to jurisdiction over its once estimated be worth. trial court retains apparent purpose for the set- the maximum Further the may it finalize the default one five within which tlement is to hundred assign- plaintiff, defendant’s grant act to a new trial under its inherent so that the as ee, prosecute claims the de- power justice do in the cause. Under can whatever to might against his in- 329b fendant insured application either of Rule our have arising insur- jurisdiction company dent court over surance out retained grant “bungled” Under company’s the cause at the it acted to ance defense. time facts, I cannot court say these abused discretion in agrees Finally, it that the court be trial. my premise basic that the trial court reasons, deny foregoing For would jurisdiction retained cause after petition its mo- for writ of mandamus. defendant elected withdraw I am unsure because PHILLIPS, C.J., indicates that the trial court both and GONZALEZ grant HECHT, trial and jurisdiction JJ., lacked join this dissent. that the trial court abused discrеtion
granting a new trial. Abuse of discretion matter,
implies but jurisdiction over
fundamentally flawed exercise of Fourth power. See Johnson v. Appeals, 700 S.W.2d
Court of holding If the court’s over the McILVAIN, al., Petitioners, et Judd power cause the inherent and therefore grant justice, trial in a new the interest exercising JACOBS, but abused its when Joyce discretion Jr. and Emerick *6 Moore, power, then erred be- has Respondents. appropriate cause mandamus is not No. C-8149. 182, remedy. Hunsinger Boyd, 119 Tex. Texas. Supreme Court of 905, (1930). As we wrote Ap- Johnson v. Seventh Court Civil June Tex. peals, 162 Sept. Rehearing Overruled (1961): established, general It is the well appellate
that an court will not review
mandamus action the trial court
granting a new while it still
jurisdiction of the cause. The discretion
and judgment of the trial court cannot be
controlled or mandamus. directed our
Even if we were free to substitute in this for that of the trial court
discretion
matter, justify facts do majority’s conclusion its discretion.
court abused de- is one of underlying judgment approximately one amount of
fault in the plain- default the Prior to
million dollars. $185,000 offered his case
tiff valued