Court of Appeals of Texas, Eighth District, El Paso
from the 193rd Judicial District Court of Dallas County,
Texas (TC# 06-06205-L)
Chew, C.J., McClure, and Rivera, JJ.
WELLINGTON CHEW, CHIEF JUSTICE
Semiconductor Services, Inc. ("ISS") filed this
restricted appeal following the trial court's entry of a
post-answer default judgment in favor of Avago Technologies
U.S., Inc. ("Avago"). In a single issue, ISS
contends the trial court granted the amended motion to
withdraw immediately before trial, and by granting a default
judgment in violation of Rule 10 of the Texas Rules of Civil
Procedure and Rule 4.02 of the Dallas County Local Rules. We
will affirm the trial court's judgment.
suit is a breach of contract and contractual interference
action. Avago contracted to purchase semiconductor
manufacturing equipment through Mr. Jesse Bell of JC
Technology Sales. At the time Mr. Bell first contacted Avago
about purchasing the equipment, Mr. Bell was a representative
of ISS which manufactured the equipment Avago wished to buy.
On August 10, 2005, Avago received a price quote for an
"LAM A6 Alliance TCP 9400PTX Process Module" from
Mr. Bell. According to the quote, Mr. Bell could deliver the
LAM equipment in twelve weeks for a total price of $775, 000.
Based on Mr. Bell's association with ISS, Avago
understood that ISS would be manufacturing the equipment and
that ISS was capable of meeting Avago's requirements.
Avago worked exclusively with Mr. Bell to order the LAM
equipment. Avago issued a purchase order for the LAM
equipment to Mr. Bell on October26, 2005. Avago paid $465,
000 to Mr. Bell at the time it ordered the equipment. This
payment constituted 60 percent of the total purchase price.
Mr. Bell failed to deliver the equipment on time. Six weeks
after the agreed delivery date, Avago employees traveled to
ISS's facility to inspect the equipment. They found the
equipment was not complete, and that it failed to meet
Avago's specifications. Avago representatives scheduled a
second inspection for April 19 based on Mr. Bell's
representations that the equipment would be completed at that
time. However, on the morning Avago employees were scheduled
to travel to the ISS facility, an ISS representative
contacted Avago and informed the buyer that the equipment was
still not in final form. This was the first communication
Avago received directly from ISS.
more weeks and delivery dates passed, and on June 14, 2004,
ISS conducted a third inspection of the equipment at the ISS
facility. Following this inspection, Avago concluded that ISS
was incapable of manufacturing the equipment to its
specifications. The following week, Avago notified Mr. Bell
that he was in material breach of the purchase order
contract. Mr.Bell was given ten days to cure the breach
before Avago terminated the contract and began seeking legal
action. The equipment was never delivered, and Avago's
pre-payment was not returned.
29, 2006, Mr. Bell filed suit against ISS for breach of
contract, alleging the manufacturer failed to deliver the LAM
equipment. On July 20, 2006, Mr. Bell amended his petition to
include Avago as a defendant. Mr. Bell alleged that Avago was
working with ISS to "cut [him] out of the deal,"
and sought the benefits of the original contract as damages.
On April5, 2007, Avago filed its first amended petition and
asserted a counter-claim for breach against Mr. Bell, and a
cross-claim against ISS alleging it was a third party
beneficiary to the contract between ISS and Mr. Bell.
March 20, 2007, the parties filed a joint motion for
continuance. The motion represented to the trial court that
the parties had been discussing an appropriate scheduling
order and had agreed to a September 11, 2007 trial setting.
They requested the court set the case for trial pursuant to
their agreement. The trial court granted the request on July
12, 2007, by signing a scheduling order setting the case for
trial on September 11, 2007.
August 21, 2007, ISS's attorneys filed a motion to
withdraw from the case. The trial court denied the motion by
written order on August 24, 2007. On September 4, 2007,
ISS's attorneys filed an amended motion to withdraw. The
amended motion represented that "good cause"
existed to terminate the attorney-client relationship, and
that termination was "in the best interest of all
parties." The motion stated further that ISS had been
notified of the motion and its right to object to withdrawal
by regular and certified mail. Finally, the motion also
states ISS's president was consulted and was not opposed
to the withdrawal. The trial court granted the amended motion
to withdraw on September 6. There is no record of any
objection to the motion or a continuance for time to obtain
case proceeded to trial on September 11, 2007. Neither ISS,
nor Mr. Bell appeared in person or through counsel despite
having received notice of the setting. Avago introduced
evidence of both opposing parties' breach through
affidavit testimony and exhibits. The trial court entered a
default judgment in Avago's favor immediately following
trial. The judgment imposes joint and several liability for
Avago's pre-payment, travel expenses, pre-judgment
interest, and attorneys fees, as well as awarding exemplary
damages. ISS filed its notice of restricted appeal
on March 10, 2008.
prevail on a restricted appeal, an appellant must establish:
(1) the notice of appeal was filed within six months after
the judgment or order appealed from was signed; (2) the
appellant was a party to the underlying suit; (3) the
appellant did not participate in the actual trial of the
case; and (4) the error complained of must be apparent on the
face of the record. See Tex.R.App.P. 26.1(c);
Norman Communications v. Tex. Eastman Co., 955
S.W.2d 269, 270 (Tex. 1997). In this case, the parties do not
dispute that the first three criteria have been met. The
disputed issue is whether there is trial court error on the
face of the record.
review the granting of a motion to withdraw for an abuse of
discretion. Gillie v. Boulas, 65 S.W.3d 219, 221
(Tex.App.--Dallas 2001, pet. denied). A court abuses its
discretion by granting a motion to withdraw that fails to
satisfy the requirements of Rule 10 of the Texas Code of
Civil procedure. Id.
attorney may withdraw from representation of a client upon
written motion for good cause. Tex.R.Civ.P. 10; see
Rogers. v. Clinton, 794 S.W.2d 9, 10 n.1 (Tex. 1990). If
no counsel is substituting for the withdrawing attorney,
counsel's motion must state, "that a copy of the
motion has been delivered to the party; that the party has
been notified in writing of his right to object to the
motion; whether the party consents ...