Monk v. Dallas Brake & Clutch Service Co., Inc.
| Citation | 697 S.W.2d 780 |
| Decision Date | 06 September 1985 |
| Docket Number | No. 05-84-00788-CV,05-84-00788-CV |
| Parties | Marion MONK and the City of Dallas, Appellants, v. DALLAS BRAKE & CLUTCH SERVICE CO., INC., Appellee. |
| Court | Court of Appeals of Texas |
Randall R. Moore, Law Office of Windle Turley, P.C., Douglas H. Conner, Asst. City Atty., Dallas, for appellants.
Porter Johnston, Touchstone, Bernays, Johnston, Beall & Smith, Dallas, for appellee.
Before SPARLING, ALLEN and MALONEY, JJ.
Appellants Marion Monk, Devin Monk, Bradley Snyder and Kelley Snyder (plaintiffs) sued appellant City of Dallas and appellee Dallas Brake & Clutch Service Co. for damages arising from an automobile accident that injured Devin, Bradley and Kelley and Killed Nancy Monk, wife of Marion and mother of Devin. The City and Dallas Brake & Clutch filed cross-claims against each other for indemnity and contribution.
Prior to trial the plaintiffs settled with the City for $100,000, but the City remained a party to the suit because of the cross-actions and settlement agreement. The jury found Brake & Clutch 100 percent liable for the damages it awarded to the plaintiffs. However, the trial court sustained a motion by Brake & Clutch for judgment notwithstanding the verdict and entered take-nothing judgments in all actions. 1 On appeal, only the judgment n.o.v. against the plaintiffs is challenged. We affirm.
The City does not appeal the adverse judgment in its cross-action against Brake & Clutch. Instead, the City on appeal asks only that we "reinstate judgment for plaintiffs." Since the City seeks affirmative relief for the plaintiffs and not for itself, we address first Brake & Clutch's cross-point challenging the City's standing to pursue its appeal. For the following reasons, we sustain this cross-point and hold that the City has no standing to appeal on behalf of the plaintiffs.
The City claims it has standing to assert this appeal under a "Mutual Guarantee Settlement Agreement" between the City and the plaintiffs which grants the City a financial interest in the plaintiffs' recovery from Brake & Clutch. However, the so-called "Mutual Guarantee Settlement Agreement" is not in the record. The record does contain a document entitled "Final Release and Settlement Agreement between Plaintiffs and Defendant City of Dallas" which contains references to another document called the "Agreement of Mutual Guarantee"; however, the record contains no document of the latter title. The "Final Release and Settlement Agreement" does not purport to give the City any right to appeal on behalf of the plaintiffs and contains no assignment of any part of the plaintiffs' cause of action. Of the missing agreement, only "a portion of Paragraph 4" is before us. This portion of the absent agreement between the plaintiffs and the City concerns the plaintiffs' promise to hold the City harmless for any payments or liability beyond an amount "not to be disclosed to the jury" and provides that "any recovery by way of judgment against any of the other Defendants shall be reimbursed back to the City of Dallas to the extent ... of a specified percentage ... received until the full amount guaranteed and paid by the City to the Plaintiff shall have been repaid to the City."
Although we recognize that all or part of a plaintiff's cause of action may be assigned, Unitrust, Inc. v. Jet Fleet Corp., 673 S.W.2d 619, 621 (Tex.App.--Dallas 1984, no writ), nothing in the record before us purports to assign any of the plaintiffs' cause of action to the City and the City does not assert the existence of any express assignment. 2 Instead, the City states in its brief that "the essence of its appeal is an action against Brake & Clutch for contribution."
As we noted at the outset, the City has not appealed the adverse judgment in its cross-action against Brake & Clutch for contribution. Moreover, we question whether the City could have prevailed in an appeal of that cross-action judgment because the City has no right to contribution in this case according to Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984). Issues were submitted to the jury on the percentage of the City's liability and the jury assessed no liability against the City. As the supreme court stated in Bonniwell: "Contribution is available only to a joint tortfeasor." 663 S.W.2d at 818. In assessing no liability against the City the jury found that the City is not a joint tortfeasor. Further, the trial court rendered judgment for the City "in accordance with the verdict of the jury, and the Final Release and Settlement Agreement between Plaintiffs and the City of Dallas," in which agreement the City also denies liability for the plaintiffs' damages.
In sum, even though the City has not appealed the adverse judgment in its cross-action against Brake & Clutch, the City now asserts that its appeal is in "essence ... an action against Brake & Clutch for contribution." Further, under Bonniwell, since the City is not a joint tortfeasor, it has no right to obtain contribution from Brake & Clutch. Thus, by phrasing its appeal as a request for relief for the plaintiffs rather than for itself, the City apparently seeks from us a result it could not achieve through an appeal asserting its own rights. We decline to allow the City a result in contravention of the express policy of our supreme court and hold instead that the City cannot base its standing to appeal on a non-existent right to contribution.
Accordingly, we hold that the City has no standing to assert its appeal on behalf of the plaintiffs and thus we do not consider its points of error.
The plaintiffs assert one point of error on appeal, in which they claim that the "reason given" by the trial court for granting judgment n.o.v. "is, as a matter of law, insufficient to support a judgment notwithstanding the verdict." According to the plaintiffs, the "reasons given" by the trial court was that the "jury verdict was against the great weight and preponderance of the evidence." However, the judgment contains no reason why the trial court granted judgment n.o.v. In pertinent part, the judgment states that after Brake & Clutch filed its motion for judgment n.o.v. and reasonable notice was given to all parties, "the court duly heard and considered the motion, the pleadings, the evidence, and argument of counsel, and is of the opinion that the motion should be granted, and that judgment should be rendered for defendant Dallas Brake & Clutch Service Company, Inc. Non-Obstante Veredicto."
Apparently, the plaintiffs do not contend that the purported "reason given" by the trial court for rendering judgment n.o.v. is contained in the judgment because they cite us to language in a letter written by the trial court which they have attached to their brief. Regardless of any letter, we decline to infer statements or reasoning into the judgment.
Brake & Clutch's motion for judgment n.o.v. contains fifteen grounds upon which judgment n.o.v. should be granted. However, the trial court judgment states no reason why judgment n.o.v. was granted. The rule in this situation is settled: "Since the trial court sustained the motion for judgment n.o.v. without limitation to any particular ground, we presume that each of the grounds specified in the motion is an independent, alternative basis for the court's take-nothing judgment." Smith v. Texas Improvement Co., 570 S.W.2d 90, 92 (Tex.Civ.App.--Dallas 1978, no wirt), citing McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964). and McAx Sign Co. v. Royal Coach, Inc., 547 S.W.2d 368, 369 (Tex.Civ.App.--Dallas 1977, no writ). Although McKelvy and McAx involved instructed (directed) verdicts rather than judgments n.o.v., a motion for judgment n.o.v. is appropriate when a directed verdict would have been proper, TEX.R.CIV.P. 301 (Vernon 1977); thus these cases apply equally to our review.
In McKelvy, the motion for instructed verdict contained only two grounds and the trial court judgment merely recited that specific grounds were set forth in the motion...
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