Rogers v. Clinton

¶1dissenting.

¶2I respectfully dissent. I cannot agree with the court that the withdrawal of a motion for new trial by a defendant spontaneously divests a trial court of jurisdiction to reconsider a default judgment.

¶3This original mandamus proceeding concerns the boundaries of a trial court’s plenary jurisdiction. The issue is whether a trial court retains jurisdiction over its judgment for any period of time following a party’s election to abandon a timely filed motion for new trial. This court holds that the respondent trial court lost jurisdiction over its judgment at the instant the movant filed his motion to withdraw his pending motion for new trial because the initial thirty day period of plenary jurisdiction had elapsed by that time. The court reaches its conclusion by analogy to principles governing nonsuits and because the rule governing motions for new trial does not specifically explain what should be done in this situation. I dissent because the framework created by Texas Rule of Civil Procedure 329b clearly indicates that the trial court retains plenary jurisdiction over its judgment for a period of thirty days following disposition of the motion for new trial. Furthermore, I find the court’s analogy to principles of nonsuit inapplicable.

¶4A trial court retains for a limited time an inherent power to set aside, modify, or amend its final judgment “without the necessity of a formal written or oral motion by a party, or for reasons not incorporated in a motion duly filed.” 4 R. McDonald, Texas Civil Practice § 18.03 at 266 (F. Elliott rev. 1984); see also Spikes v. Smith, 386 S.W.2d 346, 347 (Tex.Civ.App.—Corpus Christi 1965, orig. proceeding); Tex.R. Civ.P. 320. This is the period of the trial court’s plenary jurisdiction and the discretion exercised by the court over its judgment during this period has been described as “practically unlimited.” Sandoval v. Rattikin, 395 S.W.2d 889, 892 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n.r.e.).

¶5The length of this period depends on two factors: (1) Whether a party elects to file a motion for new trial, and (2) When or whether the court acts on the motion. If no motion for new trial is filed, a trial court retains plenary power over its judgment until thirty days after the judgment is signed. Tex.R.Civ.P. 329b(d). The filing of a motion for new trial during this initial thirty day period extends the court’s jurisdiction over the judgment until thirty days after all timely filed motions for new trial are overruled. Tex.R.Civ.P. 329b(e). If the trial court does not act on the motion for new trial in writing, the motion is deemed overruled by operation of law seventy-five days after the judgment was signed. Tex. R.Civ.P. 329b(c). Even when the motion for new trial is overruled by operation of law, the trial court retains plenary power over its judgment for an additional thirty days. Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex.1985); Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex.1978); Transamerican Leasing Co. v. Three Bears, Inc., 567 S.W.2d 799, 800 (Tex.1978). The period of a trial court’s plenary jurisdiction therefore can be as short as thirty days or as long as one hundred and five days, depending on whether a motion is filed and when or if the court acts on it. The operation of Rule 329b thus makes it perfectly clear that the original thirty day period of plenary jurisdiction is pushed forward by the timely filing of a motion for new trial and commences running either on the date the court acts on the motion or seventy-five days after the signing of the final judgment, whichever occurs first.

¶6In the underlying cause the defendant withdrew his timely filed motion for new trial during the period of extended plenary jurisdiction. See Tex.R.Civ.P. 329b(e). This court apparently views the motion to withdraw as tantamount to an expunction *13of the original motion for new trial.1 cause the'rule does not expressly address this situation, the court concludes we must fall back to the original thirty day period of plenary jurisdiction. The result here is that the trial court lost jurisdiction over its judgment at the instant the movant indicated his desire to abandon his motion for new trial. Be-

¶7The court’s rationale for this result is that a party’s right to abandon a motion for new trial is absolute and analogous to a plaintiff’s right to take a nonsuit. The court writes that the movant “had the absolute right to withdraw his motion for new trial at the time he did, and that once he had done so the district court was without authority to set aside the default judgment and order a new trial.” 794 S.W.2d 11. The court’s reasoning by analogy is invalid.

¶8Texas Rule of Civil Procedure 162 governs nonsuits and authorizes a plaintiff to take one “[a]t any time before the plaintiff has introduced all of his evidence other than rebuttal evidence.” The comment to the most recent amendment of this rule notes that the rule’s purpose is to fix a definite time after which a party may not nonsuit a cause of action. Under the facts of the underlying case, the time had long since passed for the plaintiff to take a nonsuit or by analogy for the defendant to abandon some defensive matter. Furthermore, the nonsuit rule relates to claims or causes of action; the situation the court finds analogous does not. Upon entry of the default judgment in the underlying cause, the plaintiff’s claims were merged into and replaced by the judgment in his favor. From that point forward the trial court’s plenary power over that judgment attached and during this period the trial court possessed inherent power to grant a new trial in the interest of justice. See Champion International Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898 (Tex.1989). In a sense, during the period of plenary jurisdiction the judgment belongs to the trial court, and it retains broad discretion in determining whether or not the ends of justice will be served by a new trial. Surely a court reconsidering its act of granting a default judgment must be given the greatest latitude.

¶9A majority of this court apparently perceives the trial court’s order granting new trial as an unwarranted intrusion upon the parties right to settle this controversy.2 I, however, see it differently. Although I endorse the defendant’s right to withdraw his motion for new trial and settle the controversy, the parties to the litigation cannot make the trial court an unwilling participant in the settlement bargain. In other words, the parties are not free to bargain with the trial court’s judgment. A settlement agreement cannot be used as a mechanism to terminate the trial court’s plenary power and thereby wrest control of the judgment away from the court. I believe this court errs in permitting the parties to use Rule 329b in this manner. The rule lends itself to at least two better interpretations.

¶10First, we might construe the act of withdrawing a motion for new trial as the functional equivalent of a written order denying the motion. Under this interpretation the court’s plenary jurisdiction would extend for a period of thirty days after the filing of movant’s formal motion to withdraw. Alternatively, we might apply subsection (c) of the rule which provides that a motion for new trial, which has not been determined by written order signed within seventy-five days following judgment, is considered overruled by operation of law. Tex.R.Civ.P. 329b(c). Under this application of the rule, the consequence of a party withdrawing his motion for new trial is that there will be no written order on the motion, and it will most likely be deemed *14overruled by operation of law after seventy-five days. During this period, however, the trial court retains jurisdiction over its judgment and has the maximum period of one hundred five days within which it may act to grant a new trial under its inherent power to do justice in the cause. Under either application of Rule 329b our respondent trial court retained jurisdiction over the cause at the time it acted to grant a new trial.

¶11Finally, it may be that the court agrees with my basic premise that the trial court retained jurisdiction over the cause after the defendant elected to withdraw its motion for new trial. I am unsure because the court indicates both that the trial court lacked jurisdiction to grant a new trial and that the trial court abused its discretion in granting a new trial. Abuse of discretion implies jurisdiction over the matter, but a fundamentally flawed exercise of the court’s power. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985). If the court’s holding is that the trial court had jurisdiction over the cause and therefore the inherent power to grant a new trial in the interest of justice, but abused its discretion when exercising this power, then the court has erred because mandamus is not the appropriate remedy. Hunsinger v. Boyd, 119 Tex. 182, 26 S.W.2d 905, 907 (1930). As we wrote in Johnson v. Seventh Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330, 331 (1961):

It is the general rule, well established, that an appellate court will not review by mandamus an action of the trial court granting a new trial while it still has jurisdiction of the cause. The discretion and judgment of the trial court cannot be controlled or directed by mandamus.

¶12Even if we were free to substitute our discretion for that of the trial court in this matter, the underlying facts do not justify the majority’s conclusion that the trial court abused its discretion.

¶13The underlying judgment is one of default in the amount of approximately one million dollars. Prior to default the plaintiff valued his case at $185,000 and offered to settle for this amount. The judgment therefore is five times what thte plaintiff once estimated his claims to be worth. Further the apparent purpose for the settlement is to finalize the default judgment so that the plaintiff, as defendant’s assign-ee, can prosecute whatever claims the defendant insured might have against his insurance company arising out of the insurance company’s “bungled” defense. Under these facts, I cannot say that the trial court abused its discretion in granting a new trial.

¶14For the foregoing reasons, I would deny the petition for writ of mandamus.