Lloyd's of London v. Walker
| Citation | 716 S.W.2d 99 |
| Decision Date | 30 July 1986 |
| Docket Number | No. 05-85-00640-CV,05-85-00640-CV |
| Parties | LLOYD'S OF LONDON, et al., Appellants, v. H.W. WALKER, et al., Appellees. |
| Court | Court of Appeals of Texas |
L.W. Anderson, Dallas, for appellants.
William R. Keffer, W. Bruce Monning, Dallas, for appellees.
Before AKIN, HOWELL and HOLLINGSWORTH, JJ.
This is an action on an insurance policy. The appellants, certain underwriters at Lloyd's of London, and Dub Martin & Co., Inc., their agent in Texas (hereinafter collectively "Lloyd's"), appeal from a judgment rendered for H.W. Walker, Walker Service and Equipment Company and Houston Coin-Op Equipment Sales, Inc. (hereinafter collectively "Walker"). In fifteen points of error, Lloyd's contends that the trial court erred: 1) in delaying judgment for six years from the date of trial; 2) in rendering judgment against Dub Martin; 3) in rendering judgment in favor of Walker Service and Equipment Co.; 4) in rendering a judgment for Walker that did not conform to the pleadings; 5) in granting Walker's motion to reinstate the dismissed case; and 6) in rendering judgment for Walker because the alleged losses were for equipment not covered by the policy and occurred at premises not covered by the policy. Because these contentions lack merit, we affirm.
Walker sold coin-operated laundry, dry-cleaning, and car-wash equipment to operators of establishments throughout Texas. Typically, Walker and its purchasers engaged in a conditional sales transaction, with Walker retaining a security interest in the equipment. In connection with this business, Walker purchased "surplus line" insurance from appellants.
In the course of Walker's business, the operators sometimes defaulted on equipment payments necessitating repossession. Having repossessed, Walker would, on occasion, take over the vendee's operation, assume the premises lease of its vendee, and operate in the same manner as its former vendee. Walker suffered losses due to vandalism or fire at three such establishments. It filed a claim with Lloyd's, who refused payment on the policy. Walker sued. After a nonjury trial, six years elapsed before the court rendered judgment in Walker's favor and supported its judgment by findings of fact and conclusions of law.
In its first four points of error, Lloyd's contends that the trial court erred in delaying rendition of judgment in this cause for six years because the delay was unreasonable, caused Lloyd's "embarrassment and undue hardship," violated rule 330(i) of the Texas Rules of Civil Procedure, and was in violation of Canon 3 of the Code of Judicial Conduct. The trial in this cause took place in 1979. In 1981 both Walker and Lloyd's moved for findings of fact and conclusions of law and judgment. Nothing further occurred in this cause until February 12, 1985, when the cause was dismissed. Walker then filed a motion to reinstate, which was opposed by Lloyd's, but granted by the trial court on March 7, 1985. The trial court rendered judgment for Walker on March 11, 1985. In its motion for new trial, Lloyd's nowhere asserted that the judgment was improper because of the lapse of time, although it did argue in its motion opposing reinstatement that Walker should be barred by laches from obtaining judgment because of the lapse of six years from time of trial to entry of judgment. We do not agree that the rendition of judgment was improper in this case.
Rule 330(i) provides in pertinent part:
Acts in Succeeding Terms
If a case or other matter is on trial, or in the process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next or any subsequent term of court and no motion or plea shall be considered as waived or overruled, because not acted upon at the term of court at which it was filed, but may be acted upon at any time the judge may fix or at which it may have been postponed or continued by agreement of the parties with leave of the court.
TEX.R.CIV.P. 330(i). Thus, the rule itself contains no time limit in which a court must act in rendering judgment--to the contrary, it may act at the next or any subsequent term. Although the rule itself contains no time limit, Lloyd's contends that we should infer a limit of "reasonableness." We need not decide in this case whether such a limitation should be imposed on rule 330(i) because Lloyd's has failed to demonstrate how the time here was unreasonable, or how the delay resulted in harm to it. We hold that the burden to show unreasonableness and harm rests upon the appellant. See Bryant v. Bruner, 593 S.W.2d 358, 362 (Tex.Civ.App.--Texarkana 1979, no writ) (delay of thirteen months not shown by the appellant to be unreasonable or to have harmed him); see also Cahn v. Schmitz, 56 Ariz. 469, 108 P.2d 1006, 1008-09 (1941); (seven-year delay not shown to be unreasonable); Wallace Grain & Supply Co. v. Cary, 374 Ill. 57, 28 N.E.2d 107, 108-09 (1940) (). Industrial Loan & Thrift Corp. v. Benson, 221 Minn. 70, 21 N.W.2d 99, 101 (1945) (); De Lao v. Garcia, 96 N.M.App. 639, 633 P.2d 1237, 1238 (1981) ()
Here, Lloyd's asserts that it has been caused hardship and "embarrassment" by the delay because the various underwriters at Lloyd's "may be difficult to locate, or without sufficient resources ... or may even be deceased." Such tentative hypotheses are not sufficient to show harm rendering entry of judgment erroneous. Lloyd's also contends that Howard Walker, an individual plaintiff in this case, has died, leaving the "embarrassing question" of to whom the judgment should be paid. The judgment decreed that "H.W. Walker, individually and doing business as Walker Service and Equipment Company, Inc. and Houston Coin-Op Equipment Sales, Inc." recover of appellants a certain sum of money. If H.W. Walker has no estate to accept payment from appellants, and the issue arises as to who has succeeded to the rights of Walker or the above corporations, appellants may pay the amount of the judgment into court and, if conflicting claims are presented, may bring an interpleader action for determination of those persons entitled to the funds. We hold that death of the plaintiff alone does not state a sufficient cause for holding the judgment to have been entered in error.
We conclude that violation of the Code of Judicial Conduct, Canon 3A(5), by failing to "dispose promptly of the business of the court," if there was such a violation, would not constitute reversible error. See Bryant, 593 S.W.2d at 362. The law provides better methods of disciplining dilatory judges than depriving a successful litigant of judgment on a meritorious claim. Lloyd's has failed to show that no reasonable excuse exists for the judge's delay. The record indicates that Lloyd's failed to bring the matter to the court's attention from 1981 to 1985. Only upon rendition of a judgment adverse to Lloyd's has it belatedly argued that the delay was unreasonable. Although we cannot condone this delay by the judge, if it was his delay, we hold that, absent proof of some significant injury to appellant Lloyd's, or of some other factor rendering the delay unreasonable, a six-year delay between trial and rendition of judgment is not unreasonable as a matter of law, and thus the trial court did not commit reversible error.
In points of error five, six, and seven, Lloyd's contends that the trial court erred in rendering judgment against Dub Martin & Co., Inc. because the parties to the insurance policy had contractually provided that Dub Martin would not be liable for any claims under it; the trial judge had orally dismissed this defendant from the case at trial, granting it judgment; and the judgment against Dub Martin was improper under article 1.14-2 section 11 of the Texas Insurance Code.
The relevant provision of the insurance policy is as follows:
It is expressly understood and agreed by the Assured, insurance agent or broker, any morgagee or other parties who may have an interest in this insurance, that McNiel & Coulson Agency, Inc. is not one of the Underwriters or Insurors hereunder and is not nor shall be in any extent liable for any loss or claim whatsoever, but that the insurors are those Underwriters whose names appear herein.
[Emphasis added]. The trial court found that Dub Martin acquired McNiel & Coulson Agency, Inc. and thereby assumed its obligations, including those under this policy. Consequently, judgment was properly rendered against Dub Martin only if it would have been properly rendered against McNeil & Coulson. Because we disagree with each of Dub Martin's contentions, we hold that judgment was properly rendered against it.
First, article 18.23 of the Insurance Code provides that underwriters at a "Lloyds" (which these underwriters are) shall be exempt from all provisions of the Insurance Code except those under article 18 and those which are specifically said to apply. Article 1.14-2, § 11 is not specifically made applicable. Consequently, even if article 1.14-2, § 11 did preclude suit against the agent, which it does not, article 18.17 of the Insurance Code would be the controlling statute because this is a policy issued under a "Lloyd's plan," as that term is used in article 18 of the Insurance Code. Article 18.17 provides in pertinent part:
Action on any policy or contracts of insurance made by the attorney for the underwriters may be brought against the attorney or against the attorneys and the underwriters or any of them.... A judgment in any such action against the attorney or against any of the underwriters shall be binding upon and be a judgment against each and all...
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