TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00246-CV
Loretta Negrete Soliz, Appellant
v.
Jerry Lee Cofer, Thomas Noralez, and Trinity Universal Insurance Company, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. 95-15408, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING
Appellant Loretta Soliz appeals the district court=s judgment denying her uninsured
motorist coverage. In ten issues, Soliz contends the district court erred by (1) relitigating a liability
issue that had been determined by default judgment, (2) failing to award her attorney=s fees, (3)
admitting the testimony of two witnesses, (4) granting a partial summary judgment, and (5)
reconsidering and vacating a prior order of severance and abatement and dismissing one of her claims.
We will affirm the district court=s judgment.
BACKGROUND
Soliz sustained injuries when her automobile collided with another automobile driven
by Jerry Lee Cofer, an uninsured motorist. The automobile driven by Cofer was owned by Thomas
Noralez. Soliz=s automobile was insured by Trinity Universal Insurance Company (ATrinity@), and her
policy included uninsured motorist coverage. Trinity denied Soliz=s personal injury claim, contending
that she was not entitled to benefits under the policy because she was at least fifty percent responsible
for the accident. Soliz brought suit against Cofer, Noralez, and Trinity.
Soliz sued Cofer and Noralez for negligence and Trinity for breach of contract and
extra-contractual violations. Trinity answered by a general denial. Cofer and Noralez failed to appear
or answer after service and return of citation. Soliz obtained separate interlocutory default judgments
against Cofer and Noralez; neither judgment allocated negligence or awarded an amount of
compensatory damages. 1
In advance of trial, Soliz apparently sought to take the deposition of William Nalle,
Trinity=s accident reconstruction expert. Instead, Soliz and Trinity entered into a Rule 11 Agreement
(Athe agreement@) on April 1, 1999, providing that Trinity would not call Nalle to testify at trial in
exchange for Soliz=s agreement to stipulate to admission of a diagram prepared by Nalle. The cause
was tried to a jury. On May 3, 1999, the jury found that Soliz suffered $143,440 in damages and
apportioned the liability fifty percent each between Soliz and Cofer. The district court rendered
judgment in favor of Soliz for half of the actual damages; the judgment did not include interest,
attorney=s fees, or statutory damages under article 21.55 of the Texas Insurance Code. See Tex. Ins.
Code Ann. art. 21.55, ' 6 (West Supp. 2002). Soliz filed a motion for new trial. The district court
initially denied that motion but eventually set aside the judgment and signed an order granting a new
trial.
Before the second trial and in response to an interrogatory, Trinity informed Soliz that
it intended to call Nalle to testify at trial. Contending that the agreement barred his testimony, Soliz
1
The interlocutory default judgment against Noralez stated that his liability was deemed admitted;
the interlocutory default judgment against Cofer purported to establish his liability Aas a matter of law.@
2
filed a Amotion to strike@ Nalle. Trinity responded that the parties= earlier agreement applied only to
the original trial, and not to the second one. The district court denied Soliz=s motion, and Soliz took
Nalle=s deposition in advance of trial. Nevertheless, Soliz filed an amended petition asserting a breach
of contract action against Trinity and its counsel for their refusal to honor the agreement. The trial
court granted a joint motion severing the breach of contract action. The second trial commenced
January 8, 2001. The district court rendered judgment on the jury verdict and dismissed the contract
action with prejudice.
At the second trial, the jury found that as between Soliz and Cofer, Soliz was 100%
negligent in causing the accident. However, the final judgment awarded her damages in the amount
of $88,410.00 against Cofer and Noralez based on the previous default judgments determining their
liability.2 In the final judgment, the district court ruled that the default judgments against Cofer and
Noralez were not binding on Trinity because Soliz never obtained Trinity=s written consent before
filing suit against Cofer and Noralez. The court found that pursuant to the uninsured motorist policy,
A[a]ny judgment for damages arising out of a suit brought without [Trinity=s] written consent is not
binding against [Trinity].@ Because the jury failed to find Cofer negligent and assessed no damages,
the trial court ordered that Soliz take nothing against Trinity. The district court also found as a
matter of law that there was no breach of the Rule 11 agreement because it applied only to the first
trial. Soliz filed a motion for new trial and, in the alternative, motion for judgment notwithstanding
the verdict (JNOV), both of which were overruled. This appeal followed.
2
In addition, the final judgment awarded Soliz $58,440.10 in pre-judgment interest, post-judgment
interest as provided by law, and costs of court.
3
DISCUSSION
Default Judgments
Soliz premises her first four issues on the assertion that the default judgments against
Cofer and Noralez established their liability as a matter of law and therefore it was error to include
questions in the court=s charge asking the jury to determine the negligence and percent of negligence
as between Cofer and Soliz. In issue one, she argues that the district court erred in litigating the issue
of liability when the default judgments had already established liability. In issue two, she contends
that the trial court erred in submitting the liability issue to the jury instead of limiting the trial to
damages. In issue three, she complains that the district court erred when it denied her motion for
JNOV. In her fourth issue, she argues that because the final judgment entitled her to recover damages
from Cofer and Noralez, the district court erred in rendering a take nothing judgment against Trinity.
At the outset, we note that the record reflects that Soliz did not object to the
submission of any of the questions asked of the jury in the court=s charge. Normally, Aa party who
finds fault with a proposed jury question need only object to the inclusion of the question in the
charge.@ Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 902 (Tex. App.CAustin 1991, no writ);
see also Tex. R. App. P. 33.1(a) (AAs a prerequisite to presenting a complaint for appellate review, the
record must show that the complaint was made to the trial court by a timely request, objection, or
motion. . . .@); Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94-95 (Tex. 1999) (party waives error by
failing to object to charge or raise any other objection in trial court). Soliz argues that the filing of
her motion for JNOV preserved error. See Sunwest Bank of El Paso v. Basil Smith Eng=g Co.,
4
939 S.W.2d 671, 673 n.1 (Tex. App.CEl Paso 1997, writ denied). The authority for Soliz=s
proposition is limited to a footnote in Sunwest Bank:
ABC/Sunwest filed a motion for judgment notwithstanding the verdict requesting,
among other things, that the trial court disregard the jury=s response to the
discovery rule question as immaterial to the causes of action on which the jury
found liability. In that motion, ABC/Sunwest advanced the same argument it
makes on appeal. We find the JNOV sufficient to preserve error on the issues of
the trial court=s failure to disregard the immaterial finding.
Id. The Sunwest Bank court cites no authority for this conclusion, and the language of the
footnote is limited to the determination of issues of law. See id.; see also United Parcel Serv. v.
Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (noting that
matters of law can be preserved through motion for JNOV). Soliz=s motion for JNOV might have been
sufficient to preserve error according to Sunwest Bank if she were complaining as to the legal sufficiency of
the evidence to support the jury=s verdict. See, e.g., Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.
1991); Jim Howe Homes, Inc., 818 S.W.2d at 905.3 However, it does not follow that Soliz=s motion
for JNOV preserved her complaint of error in the submission of the questions in the jury charge.
Because Soliz did not object to the charge at trial, she cannot raise her complaints on appeal.
Evidence on the questions submitted to the jury was presented by both parties, the charge was
3
Legal sufficiency complaints can be preserved through the following procedures: (1) a motion for
instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission
of the issue to the jury, (4) a motion to disregard the jury=s answer to a vital fact issue, or (5) a motion for
new trial. See Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985).
5
approved without objection, and the parties argued the charge to the jury. In short, the case was
tried on the basis reflected in the charge.
While we are not convinced that Sunwest Bank supports Soliz=s contention that she
preserved her complaint by filing a motion for JNOV, one court has held that an appellant
preserved his complaint regarding the submission of an issue to the jury that had been previously
resolved in his favor through an agreed judgment. See Neller v. Kirschke, 922 S.W.2d 182, 187
(Tex. App.CHouston [1st Dist.] 1995, writ denied). The court reasoned that because the
appellant filed a motion for directed verdict, a motion for JNOV, and a motion for a new trial on
the same issue, he preserved the complaint for appeal. Id. Assuming without deciding that Soliz
preserved her complaint despite failing to object at the time of submission, we will consider the
merits of her complaint.
The disposition of Soliz=s first four issues is controlled by a single question: Did the
policy=s consent to sue provision protect Trinity from being bound by the liability established by
the default judgments against Cofer and Noralez? We hold that it did. Here, the district court
conducted a trial on Cofer=s liability and submitted the issue to the jury after concluding that
Trinity was not bound by the default judgments because Soliz failed to obtain Trinity=s written
consent to sue Cofer and Noralez. 4 Soliz did not obtain Trinity=s written consent before
4
According to the final judgment, after Soliz and Trinity announced ready for trial, it Aappeared to
the Court that default judgments had previously been rendered against Jerry Lee Cofer and Thomas
Noralez which judgments were ruled by the court to not be binding on Trinity Universal Insurance
Company.@
6
proceeding against Cofer and Noralez, but she contends that the specific consent to sue provision
at issue has no application to the present controversy. Although the final judgment entitled Soliz
to recover $88,410.00 against Cofer and Noralez based on the default judgments, at the time the
default judgments were rendered they were interlocutory, and established liability only. The
specific wording of the policy provision states that Trinity is not bound by any judgment Afor
damages@ obtained without its consent. (Emphasis added). The provision does not address a
judgment for liability. Therefore, Soliz contends, the language of the provision unambiguously
proscribes its application to the default judgments against Cofer and Noralez as they are limited
to a determination of liability. In the alternative, she argues that if the provision is ambiguous, it
must be interpreted in her favor. See, e.g., National Union Fire Ins. Co. v. Hudson Energy Co.,
811 S.W.2d 552, 555 (Tex. 1991) (holding that ambiguous policy provisions must be construed
strictly against insurer and liberally in favor of insured).
Texas courts have held the identical consent to sue language to be unambiguous and
to include protection from default judgment liability even though the express language of such
provisions refers only to damages. 5 See, e.g., State Farm Mut. Auto. Ins. Co. v. Azima, 896 S.W.2d 177,
178 (Tex. 1995); Lichte v. Government Employees Ins. Co., 825 S.W.2d 431, 431 (Tex. 1991);
5
While Soliz does not contest the validity of the consent to sue provision, we note that
these provisions are commonplace in uninsured motorist policies, and are in fact mandated by the
Texas Insurance Board. See Tex. Ins. Code Ann. art. 5.06 (West Supp. 2002); Texas Ins. Board,
Texas Auto Manual (1992). The validity of such provisions is well settled. See Allstate Ins. Co. v.
H.M. Hunt, 469 S.W.2d 151 (Tex. 1971); see also Criterion Ins. Co. v. Brown, 469 S.W.2d 484,
485 (Tex. App.CAustin 1971, writ ref=d n.r.e.).
7
Whitehead v. State Farm Mut. Auto. Ins. Co., 952 S.W.2d 79, 83 (Tex. App.CTexarkana 1997), rev=d
on other grounds, 988 S.W.2d 744 (Tex. 1999); Simpson v. GEICO Gen. Ins. Co., 907 S.W.2d 942,
945 (Tex. App.CHouston [1st Dist.] 1995, no writ).
According to the supreme court, the policy consideration underlying a consent to sue
provision Ais to protect the carrier from liability arising from default judgments against an uninsured
motorist or from insubstantial defense of the uninsured motorist.@ Azima, 896 S.W.2d at 178
(emphasis added); see also Allstate Ins. Co. v. Hunt, 469 S.W.2d 151, 153 (Tex. 1971) (affirming trial
court=s decision to prohibit insurer from assisting in the defense of an uninsured motorist where
insurer=s participation would create a conflict of interest). In light of prior case law and because the
policy consideration underlying consent to sue provisions is clearly applicable in the present case, we
reject the argument that the language of Trinity=s consent to sue provision precludes its application.
The well established purpose of the consent provision also prevents Soliz from
asserting that Trinity waived its right to consent by entering a general denial. A number of cases
have rejected this waiver argument.6 See, e.g., U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 674
6
In support of the waiver argument, Soliz relies on two cases that are factually distinguishable from
the present controversy. In Ford v. State Farm Mutual Automobile Insurance Company, 550 S.W.2d
663, 666-67 (Tex. 1977), the supreme court held that a consent to settlement provision of an uninsured
motorist policy is waived if the insurance carrier unconditionally denies liability on the claim. The purpose of
a consent to settlement provision is to protect the carrier=s subrogation rights against an uninsured motorist
or any other person legally responsible for the insured=s injuries. Id. at 665. The purpose of a consent to
sue provision, however, is to protect an insurer from a judgment that it could not prevent from being
entered. See State Farm Mut. Auto. Ins. Co. V. Azima, 896 S.W.2d 177, 178 (Tex. 1995). In
Nationwide Mutual Insurance Company v. Patterson, 962 S.W.2d 714, 716-17 (Tex. App.CAustin
1998, pet. denied), this Court held that an insured was entitled to summary judgment on the issue of the
insurer=s liability for uninsured motorist coverage. We reasoned that by filing an unconditional denial, the
insurer had waived its right under the policy to receive a duplicate copy of the citation served on the
8
(Tex. App.CHouston [14th Dist.] 1993, no writ); Government Employees Ins. Co. v. Lichte, 792
S.W.2d 546, 548 (Tex. App.CEl Paso 1990, writ denied); Criterion Ins. Co. v. Brown, 469 S.W.2d
484, 485 (Tex. Civ. App.CAustin 1971, writ ref=d n.r.e.). In Lichte, the court of appeals held that
it was error for the trial court to render summary judgment against the insurance carrier on the
basis that it waived its right to consent to be bound by a default judgment simply because it filed a
general denial. See Lichte, 792 S.W.2d at 547-48. The court reasoned that while the consent
provision required the insured to obtain the insurer=s written consent for any judgment against an
uninsured motorist to be binding, the provision was not a condition precedent to filing suit. Id. at
548. In that case, the insurer did not attempt to use the consent provision to defeat coverage
under the policy, but rather sought compliance with the policy=s provisions. Id.
In Criterion Insurance Company, this Court enforced a similar consent provision,
stating that the policy prescribed that without the written consent to bring suit against the
uninsured motorist, liability and damage issues would have to be relitigated in the suit against the
insurance carrier. Criterion Ins. Co., 469 S.W.2d at 485; see also Allstate Ins. Co. v. Hunt, 469
S.W.2d 151, 153 (Tex. 1971). An insured seeking the benefits of his uninsured motorist coverage
has several choices:
(1) Sue his insurance company directly without suing the uninsured motorist;
uninsured motorist. Id. at 716. That holding is inapplicable here, however, because the North Carolina
policy at issue did not contain a consent to sue provision. Id. at 717 n.5.
9
(2) Obtain the written consent from his insurance carrier and then sue the
uninsured motorist alone; the judgment obtained then would be binding on the
insurance carrier; or
(3) Without the consent of the insurance carrier, proceed against the uninsured
motorist. However, any judgment obtained against the uninsured motorist will
not be binding on the insurance carrier. Liability and damages will have to be
relitigated.
Lichte, 792 S.W.2d at 548 (citing Criterion, 469 S.W.2d at 485). Here, Soliz chose the latter
option; she sued Cofer and Noralez without Trinity=s written consent. The default judgments
against Cofer and Noralez do not bind Trinity. The fact that Trinity had notice of the suit and
filed a general denial is not dispositive of Soliz=s entitlement to uninsured motorist protection.
AAn insurer=s knowledge that a suit has been filed is not equivalent to >written consent= and will
not bind an insurer to a judgment obtained in a suit brought against an uninsured motorist.@
Millard, 847 S.W.2d at 674 (citing Criterion, 469 S.W.2d at 485).
The Millard court further held that default judgments do not collaterally estop
relitigation of liability and damages by the insurer in a suit on uninsured motorist coverage:
Collateral estoppel bars relitigation of an issue if (1) the facts sought to be litigated
in the second action were fully and fairly litigated in the prior action; (2) those facts
were essential to the judgment in the first action; and (3) the parties were cast as
adversaries in the first action. For collateral estoppel to be invoked, it is only
necessary that the party against whom the plea of collateral estoppel is asserted
be a party or in privity with a party in the prior litigation. Privity is not established
by the mere fact that persons may happen to be interested in the same question or
in proving the same state of facts. Privity connotes those who are in law so
connected with a party to the judgment as to have such an identity of interest that
the party to the judgment represented the same legal right.
10
Millard, 847 S.W.2d at 674 (citations omitted). Like the insurer in that case, Trinity should not be
estopped from relitigating the liability determinations in the default judgments because Trinity
was not in privity with Cofer and Noralez. 7 Trinity could exercise no control over the suit, its
interests were not represented by Cofer and Noralez, and it is not their successor in interest.
Further, the facts of a case are not fully and fairly litigated in a default judgment. The district
court was obliged to give effect to the consent to sue provision and thereby protect Trinity from
any liability established by the default judgments. We therefore hold that the district court did not
abuse its discretion in allowing the issue of liability to be litigated despite the default judgments
against Cofer and Noralez, nor did it abuse its discretion in submitting the liability issue to the
jury. See Texas Dept. of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). Further, the
default judgments were interlocutory and subject to reconsideration. Finally, they did not
determine the percent of Cofer=s negligence as compared to Soliz, and this jury found Soliz to be
7
While Soliz repeatedly insists that the default judgments established liability as a matter of law,
Trinity points out that they were interlocutory and not final before trial. Specifically, Cofer might have been
able to contest his liability at trial since the default judgment did not dispose of the damages issue. See, e.g.,
Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693-94 (Tex. 1986). The
default judgments, without a showing of fault, do not legally entitle Soliz to recover under the uninsured
motorist policy. See Franco v. Allstate Ins. Co., 505 S.W.2d 789, 792 (Tex. 1974). Further, the default
judgments should not preclude Trinity from using legally viable defenses in litigating the claims asserted
against it. See Brazos Valley Cmty. v. Robinson, 900 S.W.2d 843 (Tex. App.CCorpus Christi 1995,
writ denied).
11
100% negligent in causing the accident. Accordingly, the district court did not err in denying
Soliz=s motion for JNOV. 8 For all of these reasons, we overrule appellant=s first four issues.
Attorney=s Fees
In her fifth issue, Soliz argues that the trial court erred in failing to award her attorney=s fees
as prescribed by Chapter 38 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.
Code Ann. '' 38.001-.006 (West 1997). In addition, she argues in her sixth issue that article 21.55 of the
Texas Insurance Code entitles her to the eighteen percent statutory penalty and attorney=s fees because
Trinity failed to pay her claim within the statutory period. Tex. Ins. Code Ann. art. 21.55, ' 6 (West Supp.
2002). In light of our disposition of her other points, we overrule her fifth and sixth issues.
Rule 11 Agreement
8
In her fourth issue, Soliz contends that because she is legally entitled to recover against Cofer and
Noralez by way of the final judgment, Trinity must pay under the terms of the policy. This argument fails for
the obvious reason that the consent provision protects Trinity from being bound by A[a]ny judgment for
damages arising out of a suit brought without our written consent . . . .@ Soliz=s damage awards against
Cofer and Noralez in the final judgment are specifically based on the default judgments that are not binding
on Trinity; therefore, the damage award in the final judgment is not relevant to Soliz=s coverage under the
policy.
12
In her seventh issue, Soliz contends that the district court erred in allowing the
testimony of Nalle in the face of a Rule 11 agreement by which Trinity had agreed not to call him at
trial. Soliz did not object when Nalle testified at trial; therefore, she did not preserve this issue for
appeal.9 In any event, we hold that the district court did not err in allowing Nalle to testify at trial.
Soliz urges that the Rule 11 agreement was valid and enforceable against Trinity in
the course of the second trial. We note that whether Trinity breached the agreement is not the
question presented to us on appeal; we are asked to review the district court=s decision to allow
Nalle to testify. The admission or exclusion of evidence is committed to the district court=s sound
discretion. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). A trial court
abuses its discretion when it acts in an unreasonable and arbitrary manner, or without reference
to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
9
In her brief, Soliz provides three citations to the record that she contends reflect her objection to
Nalle=s testimony on the basis of the Rule 11 agreement. One citation is to Soliz=s motion to strike, which
was denied. The second citation is to Soliz=s motion in limine filed before the first trial. That motion
preserves no error and could not serve as Soliz=s objection to Nalle=s testimony on the basis of the Rule 11
agreement because both parties voluntarily complied with the agreement during the first trial. Finally, Soliz
cites to her brief in support of her motion to exclude, which again preserves nothing and which objects to
Nalle solely on the basis of his qualifications as an expert.
13
241-42 (Tex. 1985). Here, Soliz failed to show that the district court abused its discretion by
allowing Nalle to testify.
The record reflects that the district court allowed Nalle to testify only after careful
consideration of the agreement. During the hearing on Trinity=s pretrial motions, the district
court considered Soliz=s contention that the agreement 10 should control in the second trial. The
court also considered its previous granting of a continuance to Soliz in order to depose Nalle and,
if necessary, acquire her own expert. The court concluded:
It=s not every Rule 11 Agreement that wouldn=t be effective in a second trial. It=s
going to depend on the Rule 11 Agreement. But if you get a new trial, I think you
can change your trial strategy. And the Court=s allowed you to depose Nalle and
given you extra time to be prepared and to hire your own expert. . . .
10
The agreement was a letter drafted by Trinity=s counsel and sent to Soliz=s counsel before the first
trial, stating:
With regard to your recent request to depose Bill Nalle, it is my intention to only call
Nalle to prove up the diagram that he prepared in connection with this accident. If
you will agree that the large diagram (which I used at the Motion for Summary
Judgment and which you have a copy of) accurately portrays the scene on the date of
the accident, I will not need to call him. It is my understanding you will agree to this.
If that is so, please execute this document as per Rule 11.
14
The district court allowed Nalle to testify only after a careful analysis of the agreement in its
context. Soliz has not shown that the decision to allow Nalle to testify constituted an abuse of
discretion. See Downer, 701 S.W.2d at 241; see also National Liab. & Fire Ins. Co. v. Allen, 15
S.W.3d 525, 527-28 (Tex. 2000). Accordingly, we overrule Soliz=s seventh issue.
Objections to Expert=s Qualifications
In her eighth issue, Soliz contends that the district court Aerred in failing to exclude
and in failing to grant a new trial in the face of the testimony of Officer Payne and William Nalle, in
that the testimony was inherently unreliable and not founded in reasonable observations or scientific
analysis.@ Soliz failed to preserve this issue for appeal. If a party does not object to evidence
presented at trial, it waives any error in its admission. Tex. R. App. P. 33.1(a)(1); see also Maritime
Overseas Corp. v. Ellis, 971 S.W.2d 402, 412 (Tex. 1998) (refusing to entertain claim as to
reliability of scientific evidence because party failed to preserve error by not objecting at trial).
When Payne and Nalle testified, Soliz did not object.
Soliz argues that the issue was preserved for appeal because her brief in support of
her motion to exclude the expert testimony of Payne and Nalle gave the district court an
opportunity to exclude their testimony. Normally a motion to exclude preserves error as a
pretrial objection. See Maritime Overseas, 971 S.W.2d at 409. However, the record must also
reflect that the party urging the motion obtained a ruling. See Tex. R. App. P. 33.1(a)(2). The
record does not reflect a ruling on Soliz=s motion to exclude, and Soliz does not direct us to a place
15
in the record where she obtained a ruling on her objection. Therefore, her eighth issue is
overruled. See Tex. R. App. P. 38.1(h).
Extra-contractual Claims
In her ninth issue, Soliz complains about the district court=s disposition of her
extracontractual causes of action in a partial summary judgment. We overrule Soliz=s ninth issue
because she fails to provide adequate citations to the record and cites no authority. See Tex. R.
App. P. 38.1(h). Soliz=s argument on this issue contains one record reference, which is to the
partial summary judgment itself. This reference is insufficient to preface an argument that a fact
question remains on extracontractual issues. Soliz=s ninth issue presents nothing for review, and
is therefore overruled.
16
Sua Sponte Order to Vacate
In her tenth and final issue, Soliz contends that the trial court erred by vacating,
sua sponte, its previous order of severance and abatement and rendering an oral motion for
summary judgment. In response to Soliz=s third amended original petition, which added a breach
of contract claim based on the Rule 11 agreement, Trinity filed a motion to sever and abate that
issue. Soliz joined in the motion, and on December 18, 2000, the district court ordered that action
to be Asevered, made the subject of a separate lawsuit, and assigned its own docket number in
this Court.@ In the final judgment, the court vacated its previous order of severance and
abatement and dismissed the claim with prejudice. On appeal, Soliz argues that this dismissal was
outside the scope of the district court=s jurisdiction and violated her right to due process. We
disagree.
Soliz argues that because the action based on the agreement had been severed and
abated, the district court had no jurisdiction to dismiss it. We note, however, that Soliz=s brief
fails to provide us with a standard of review. She cites Rule 329b of the Rules of Civil Procedure
for the proposition that the severance order became final thirty days after it was signed. See Tex.
R. Civ. P. 329b. However, Rule 329b prescribes the time for filing motions for new trial and
motions to modify, correct, or reform judgments. See id. Soliz cites no rule, and we are unaware
of one, that prohibits a trial court from reconsidering its own order of severance.11 Further, when
11
Soliz=s contention is inconsistent with the general rule that a trial court has inherent authority to
manage its own docket. See Ho v. University of Tex., 984 S.W.2d 672, 693-94 (Tex. App.CAmarillo
1998, pet. denied). We regard the power to abate a lawsuit to be Aincidental to the power inherent in every
17
the district court vacated the severance order, Soliz=s breach of contract claim and her underlying
uninsured motorist claim were reconsolidated. See Mid-Century Ins. Co. v. Lerner, 901 S.W.2d
749, 753 (Tex. App.CHouston [14th Dist.] 1995, no writ). Accordingly, the district court had
jurisdiction to dismiss Soliz=s breach of contract claim.
Soliz=s contention that the district court=s dismissal of her breach of contract action
violated her right to due process is also without merit. Having found that the district court did not
abuse its discretion in holding that the agreement did not preclude the testimony of Nalle, we
cannot say that the court acted arbitrarily and in violation of due process. Rather, the court relied
on its previous ruling, made during the hearing on Trinity=s pre-trial motions:
I have already ruled in this case that there =s no breach of the Rule 11 Agreement.
I heard you-all=s arguments, I reviewe d the agreement, there =s not any breach of
that. It wasn=t an agreement that Bill Nalle would never testify if there was a
second trial. It was an agreement that he wouldn=t testify in the first trial. And
I=ve already ruled on that.
Soliz had notice of the pretrial hearing on this issue. The record further reflects that she had the
opportunity to argue the legal merits of her breach of contract action based on the Rule 11
court to control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.@ Landis v. North Am. Co., 299 U.S. 248, 254 (1936); see also Clanton v.
Clark, 639 S.W.2d 929, 931 (Tex. 1982). By the same principle, the district court possessed the power
to vacate the severance and abatement and rule on the merits of the severed action after having heard
Soliz=s and Trinity=s arguments on the merits.
18
agreement. The court considered those arguments and ruled that there was no breach. The
pretrial hearing was therefore enough to satisfy due process. See Clanton v. Clark, 639 S.W.2d
929, 931 (Tex. 1982). The district court was well within its discretion and hardly displayed a
Ablatant expression of judicial activism@ as alleged by reconsidering and reversing its own order
of severance and abatement and dismissing Soliz=s breach of contract action. Soliz=s tenth issue
is overruled.
CONCLUSION
We overrule all of Soliz=s complaints on appeal. We therefore affirm the judgment
of the district court.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Affirmed
Filed: May 2, 2002
Do Not Publish
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Loretta Negrete Soliz v. Jerry Lee Cofer, Thomas Noralez, and Trinity Universal Insurance Company
Combined Opinion