Court of Appeals of Texas,

Eastland.

HOUSTON GENERAL INSURANCE COMPANY, Appellant

v.

David Lewis LOYD, Appellee.

No. 11-92-157-CV.

|

May 27, 1993.

Attorneys & Firms

Doug Perrin, for Houston General Insurance Company.

Coy Johnson, Arthur K. Smith, Frank J. Wathen II, and Robert Schwartz, for David Lewis Loyd.

OPINION

W.G. ARNOT, III, Justice.

*1 David Lewis Loyd was injured in an automobile accident. Because his injuries occurred while he was at work, Loyd collected workers’ compensation benefits under a policy written by Houston General Insurance Company. When Loyd sued the owner of the other vehicle (Rider Int. Freight and Custom Service), the driver (John Lee Martin), and the driver’s employer (England Transportation Company) based upon negligence, Houston General intervened to enforce its subrogation rights to recover the benefits paid under its policy.

Loyd settled his suit with Martin, England Transportation, and Rider. As a result of the settlement, Houston General was entitled to receive $49,959.44 under its subrogation lien. Loyd filed an application to recover one-third of Houston General’s share of the settlement as reasonable attorney’s fees for his lawyer pursuant to TEX.REV.CIV.STAT.ANN. art. 8307, § 6a (Vernon 1967), now TEX.REV.CIV .STAT.ANN. art. 8308-4.05 (Vernon Pamph. Supp.1993) which provides in part:

(d) If the claimant is represented by an attorney and the insurance carrier’s interest is not actively represented by an attorney, the insurance carrier shall pay a fee to the claimant’s attorney not to exceed one-third of the subrogation recovery or as may have been agreed on between the claimant’s attorney and the insurance carrier, or, in the absence of an agreement, the court shall allow a reasonable attorney’s fee to the claimant’s attorney for recovery of the insurance carrier’s interest which in no case shall exceed 33⅓ percent payable out of the insurance carrier’s recovery, and a proportionate share of expenses, payable out of the insurance carrier’s part of the recovery….

(e) If the insurance carrier obtains an attorney to actively represent its interest and if the attorney actively participates in obtaining a recovery, the court shall award and apportion an attorney’s fee allowable out of the insurance carrier’s subrogation recovery between those attorneys, considering the benefit accruing to the insurance carrier as a result of each attorney’s service. The aggregate of those fees may not exceed 33⅓ percent of the subrogated interest. (Emphasis added)

On February 24, 1992, the trial court awarded Loyd’s application for attorney’s fees. Because of the settlement of the underlying negligence cause, this order would have been a final order. Loyd filed a motion for new trial which was granted on March 23, 1992. On June 9, 1992, after another hearing, the trial court again ordered that attorney’s fees be paid to Loyd’s counsel out of Houston General’s subrogation share.

After the court entered its order of February 24, 1992, Houston General had a statement of facts prepared of the hearing, filed a request for findings of fact and conclusions of law with the court, and filed an appeal bond on March 20, 1992. However, the motion for new trial was granted on March 23, 1992, within 30 days of the final judgment. We have treated the appeal bond as prematurely filed. See Dunn v. City of Tyler, 848 S.W.2d 305 (Tex.App.-Eastland 1993, no writ).

*2 In its first point of error, Houston General complains that there is no evidence to support the trial court’s order awarding attorney’s fees. Houston General argues that there was not any evidence presented by Loyd to support his request for apportionment to support the court’s order of February 24, 1992. However, a motion for new trial was timely granted setting aside that order. Only final orders are appealable. See Cherokee Water Company v. Ross, 698 S.W.2d 363 (Tex.1985); North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966). Accordingly, this point is overruled.

In its second point of error, Houston General complains that the trial court erred in granting Loyd’s motion for new trial when Loyd had received a favorable verdict. Houston General argues: (a) that only the losing party may assert a right to move for a new trial; (b) that Loyd did not show the existence of newly discovered evidence and, therefore, was not entitled to a new trial; and (c) that the trial court erred in granting the new trial because it allowed Loyd to put on evidence thereby curing a mistake he made in a prior hearing.

We disagree with Houston General’s three contentions. First, TEX.R.CIV.P. 320 provides that “[n]ew trials may be granted and judgment set aside for good cause, on motion or on the court’s own motion on such terms as the court shall direct.” The rule does not restrict the request for a new trial to only the losing party; any party affected by the judgment can attack it. See Gaines v. Baldwin, 629 S.W.2d 81 (Tex.App.-Dallas 1981, no writ). Moreover, a trial court can grant a motion for new trial on its own motion and is not restricted to the grounds set forth in a motion. Cummins v. Paisan Construction Company, 682 S.W.2d 235 (Tex.1984). Second, the granting of a new trial is not limited to instances of newly discovered evidence. The purpose of a motion for new trial is to give the trial judge the opportunity to cure any errors by granting a new trial. See Townsend v. Collard, 575 S.W.2d 422 (Tex.Civ.App.-Fort Worth 1978, no writ). And third, an order granting a motion for new trial is an interlocutory order and is not appealable. See Atchison, Topeka and Santa Fe Railway Company v. Brown, 750 S.W.2d 332 (Tex.App.-Eastland 1988, writ den’d), cert. den’d, 493 U.S. 811, 110 S.Ct. 55, 107 L.Ed.2d 24 (1989). Houston General’s second point of error is overruled.

In its third point of error, Houston General asserts that Loyd is not entitled to attorney’s fees from its subrogation lien because its “counsel actively represented appellant’s interest in the lawsuit.”

In his application for attorney’s fees, Loyd alleged that, but for his attorney’s filing of the suit, it would have been barred by limitations. Also, the application alleges that, although Houston General’s attorney attended depositions, he did not actively participate in obtaining a recovery for Houston General, the intervenor. After a bench trial, the court awarded Loyd’s attorney $16,000.00 and Houston General’s attorney $653.15. Houston General does not bring forward a statement of facts or findings of fact and conclusions of law from the final judgment of June 9, 1992.

*3 Because there is statutory authority for the award of attorney’s fees, Houston General can not sustain an attack as to the legal sufficiency of the evidence to support the court’s award. See Article 8308-4.05(d) & (e) and Lee v. Westchester Fire Insurance Company, 534 S.W.2d 392 (Tex.Civ.App.-Amarillo 1976, no writ). Without findings of fact or a statement of facts, we must presume that the judgment is supported by factually sufficient evidence that Houston General’s counsel did not actively participate in the trial of this cause. See Guthrie v. National Homes Corporation, 394 S .W.2d 494 (Tex.1965); 4 McDONALD’S, TEXAS CIVIL PRACTICE § 20.14 (rev .1992). Consequently, Houston General’s third point of error is overruled.

Loyd brings a cross-point of error asking this court, pursuant to TEX.R.APP.P. 84, to assess damages against Houston General for bringing a frivolous appeal. Because we do not find that this appeal was for delay or without sufficient cause, Loyd’s cross-point is overruled.

The judgment of the trial court is affirmed.