Opinion
No. 04-05-00342-CV
Delivered and Filed: July 19, 2006.
Appeal from the 293rd Judicial District Court, Zavala County, Texas, Trial Court No. 03-06-10756-Zcvaja 03-07-10755-Acvaja, Honorable Amado Abascal, Judge Presiding.
Affirmed and Dismissed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Saul Guerrero, Jr. appeals the trial court's judgment contending that he is entitled to a new trial because: (1) the trial court erred in granting his attorney's motion to withdraw; (2) the trial court erred in finding that Guerrero nonsuited his cross-claim against Ford; (3) the trial court erred in allowing a new attorney to appear on his behalf; (4) the trial court erred in limiting Guerrero to one peremptory strike; and (5) the trial court erred in denying Ford's motion for a mistrial.
Background
Guerrero was the driver of a vehicle that rolled over killing two passengers and injuring a third. The passengers sued Ford and Guerrero but later nonsuited their claims against Guerrero. Ford filed a cross-claim against Guerrero for contribution, and Guerrero filed a cross-claim against Ford for his personal injuries.
Guerrero's attorney, Christopher Weixel, filed a motion to withdraw a few days before trial, stating that he had met with Guerrero, and Guerrero had decided not to pursue his cross-claim against Ford. The following day, another attorney, Guy Allison, announced that he was representing Guerrero in defending against Ford's claim for contribution. Several days later, Ford filed a motion for Allison to show authority. After a hearing, the trial court found that Allison had authority to represent Guerrero.
Based on a jury's verdict, the trial court entered a judgment against Ford for thirty-one million dollars plus prejudgment interest. The trial court also found that Ford was entitled to contribution of 10% of the damages from Guerrero. Ford and Guerrero both appealed. Ford and the passengers settled their claims on appeal, leaving Guerrero as the sole appellant seeking appellate relief.
Motion to Withdraw
In his first issue, Guerrero contends that the trial court erred in granting Weixel's motion to withdraw without providing him with a continuance. In his second issue, Guerrero contends the trial court erred in granting the motion to withdraw because Weixel failed to provide him with three days notice of the hearing.
Weixel filed his motion to withdraw on February 10, 2005, approximately five days before trial. Weixel attached two letters to the motion that he had sent to Guerrero in an effort to communicate with him. In addition, Weixel stated in his motion that he had attempted to personally contact Guerrero on numerous other occasions to no avail. At one point, Guerrero failed to provide Weixel with a new telephone number; however, Weixel was able to locate the new number through conversations with Guerrero's parents.
In his letter dated January 26, 2005, Weixel stated that he had been attempting to communicate with Guerrero for several weeks. The letter informed Guerrero that his case was set for trial on February 14, 2005. Weixel further stated in the letter that he had spoken with Guerrero's mother and father, and Guerrero's mother had informed him that Guerrero no longer wished to pursue his case against Ford. Weixel stated that if Guerrero intended to withdraw from the case, additional action needed to be taken, and Weixel urged Guerrero to contact him.
Weixel finally was able to meet with Guerrero at his apartment on January 26, 2005. Weixel stated that Guerrero informed him that he did not wish to pursue his case against Ford. Weixel arranged to meet with Guerrero the following day to discuss the proper motions to be filed for the benefit of the court. Guerrero failed to appear for the meeting.
On January 28, 2005, Weixel sent Guerrero another letter confirming their discussion on January 26, 2005, and reminding Guerrero of the trial setting. Weixel detailed the efforts he had made to contact Guerrero and re-emphasized his need for Guerrero to contact him.
At the hearing on the motion to withdraw, Weixel stated, "I have scrupulously followed Rule 10 of the Code [sic] of Civil Procedure, and that has to do with notifying the client regarding the motion to withdraw. The most important aspects that the Court needs to know is that in following Rule 10, he has been served at his house, his last known address, which I know is his correct address, by mail and also at his address as well as through certified mail." Weixel's motion also stated that he "delivered a copy of [the] motion to [Guerrero at his address], and has notified him in writing and by both certified and regular mail of his right to object to this motion." At the hearing, Weixel also provided details of his meeting with Guerrero and his other efforts to communicate with him. Weixel concluded, "He is the one, Your Honor, that has abandoned this case. And his reasons apparently are personal." Ford's attorney requested clarification on whether Guerrero consented to Weixel's withdrawal. Weixel responded that Guerrero "has abandoned his case." Weixel explained:
I have tried, personally have gone to his house. As the Court sees from my letters in the past, he is the one that has abandoned his case. He is not here today. I have been completely unable to contact him regarding this motion, or, for that matter, he is well aware the case is set for today. So getting his consent would be impossible.
The trial court granted the motion to withdraw.
A trial court's ruling on a motion to withdraw and a motion for continuance is reviewed under an abuse of discretion standard. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); In re Gost, No. 04-03-00784-CV, 2004 WL 1510608, at *1 (Tex.App.-San Antonio July 7, 2004, no pet.). Typically, in allowing an attorney to voluntarily withdraw, the trial court must give the party time to secure new counsel and time for the new counsel to investigate the case and prepare for trial. Villegas, 711 S.W.2d at 626. However, where the trial court finds that counsel's withdrawal is due to the party's own fault or negligence, the trial court does not abuse its discretion in granting the motion to withdraw and denying a continuance. Id.; Houda, Inc. v. Stephenson Wholesale Co., No. 05-03-01216-CV, 2004 WL 2802512, at *2 (Tex.App.-Dallas Nov. 30, 2004, no pet.); see also In re Gost, 2004 WL 1510608, at *2 (overruling issue contending trial court erred in granting motion to withdraw where actions taken by trial court were due to party's own fault or negligence).
In this case, the trial court did not abuse its discretion in granting the motion to withdraw without a continuance because Guerrero's own fault or negligence led to Weixel's withdrawal. Guerrero's own failure to engage in communications despite the numerous efforts made by Weixel led to Weixel's withdrawal. With regard to proper notice, Guerrero's brief focuses on Weixel's testimony that he had been unable to contact Guerrero with regard to the motion to withdraw. However, Weixel previously stated that he had "scrupulously" complied with Rule 10 in regard to notice by mail and certified mail. In addition, Weixel's motion states that Guerrero was notified in writing by certified and regular mail. When read in context, the trial court could have believed that Weixel's statement that he had been unable to contact Guerrero regarding the motion meant that he had been unable to personally contact him — not that Weixel did not achieve proper service and provide proper notice. Weixel stated that Guerrero was well aware the case was set to be heard on the day of the hearing. Accordingly, Guerrero's first and second issues are overruled.
We note that Guerrero's testimony at the hearing on his motion for new trial conflicts with Weixel's testimony at the hearing on the motion to withdraw with regard to the notice provided and whether Guerrero wanted to pursue his cross-claim. Guerrero does not, however, present any challenge to the trial court's denial of the motion for new trial. Furthermore, we would defer to the trial court's resolution of the credibility of the witnesses. See City of Fredericksburg v. Bopp, 126 S.W.3d 218, 223 (Tex.App.-San Antonio 2003, no pet.).
Nonsuit
In his eighth issue, Guerrero contends that the trial court erred in finding he had nonsuited his cross-claim against Ford. To nonsuit a claim, a party, through his attorney, can make an oral announcement of nonsuit in open court. Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1992); Bertuca v. Martinez, No. 04-04-00926-CV, 2006 WL 397904, at *6 (Tex.App.-San Antonio Feb. 22, 2006, no pet.); Strawder v. Thomas, 846 S.W.2d 51, 59 (Tex.App.-Corpus Christi 1992, no pet.). In this case, Weixel was still representing Guerrero when he announced in open court that Guerrero had informed him that he no longer wished to pursue his cross-claim against Ford and that Guerrero had abandoned his case. This oral announcement was sufficient to support the trial court's finding that Guerrero had nonsuited his claim. Guerrero's eighth issue is overruled.
Representation at Trial and Trial Rulings
In his remaining issues, Guerrero complains about Allison's authority to represent him at trial, the trial court limiting him to one peremptory strike, and the trial court's denial of Ford's motion for mistrial. The only claim involving Guerrero that could be affected by any of these alleged trial errors is Ford's claim against Guerrero for contribution. Based on a settlement between Ford and the passengers, this court has reversed the trial court's judgment as to the passengers' claims against Ford, and the cause is to be remanded to the trial court for the entry of judgment in accordance with their settlement agreement. See Ford Motor Co. v. Garcia, No. 04-05-00342-CV, 2006 WL 923213 (Tex.App.-San Antonio Apr. 5, 2006, no pet.). A settling tortfeasor is not entitled to contribution from a non-settling tortfeasor. International Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex. 1988); Brown v. KPMG Peat Marwick, 856 S.W.2d 742, 750 (Tex.App.-El Paso 1993, writ denied). Accordingly, any alleged trial error relating to Ford's contribution claim is rendered moot by the settlement. Brown, 856 S.W.2d at 750; State Dept. of Highways Pub. Transp. v. Pizana, 776 S.W.2d 762, 762 (Tex.App.-Corpus Christi 1989, no writ). When an appeal becomes moot, the appellate court is required to dismiss the cause of action, not merely the appeal. City of Garland v. Louton, 691 S.W.2d 603, 604-05 (Tex. 1985); Brown, 856 S.W.2d at 751. Accordingly, Ford's contribution claim against Guerrero is dismissed.
Conclusion
The portion of the trial court's judgment relating to Guerrero's cross-claim against Ford is affirmed, and Ford's contribution claim against Guerrero is dismissed.