Barber, In re

• Citation: 982 S.W.2d 364
• Decision Date: 12 November 1998
• Docket Number: No. 98-0090,98-0090
• Parties: 42 Tex. Sup. Ct. J. 136 In re Velma BARBER, Relator.
• Court: Supreme Court of Texas

Page 364

982 S.W.2d 364

42 Tex. Sup. Ct. J. 136

In re Velma BARBER, Relator.

No. 98-0090.

Supreme Court of Texas.

Nov. 12, 1998.

Rehearing Overruled Feb. 4, 1999.

Sharon E. Callaway, Wallace B. Jefferson, San Antonio, Joseph Segrato, Vada L. Seward-Staha, McAllen, Edward C. Mainz, Jr., San Antonio, Lynn E. Coleman, McAllen, Thomas H. Crofts, Jr., San Antonio, for Relator.

Joe Ramirez, III, Joe Ramirez, Donna, Javier Villalobos, Jesus M. Villalobos, Justino Garza, Fidel Luis Pena, McAllen, for Respondent.

PHILLIPS, Chief Justice, delivered the opinion of the Court, in which GONZALEZ, HECHT, ENOCH, OWEN, ABBOTT and HANKINSON, Justices, join.

In the suit underlying this mandamus action, the trial court erroneously rendered a default judgment against the defendant, who in fact had timely answered. We must decide whether the trial court abused its discretion in determining that its plenary jurisdiction expired on September 12, 1996, because the parties' proposed agreed order to set aside the default judgment and grant a new trial was never signed. We hold that the agreed order was signed as a matter of law, and that the trial court abused its discretion in finding otherwise. Because relator has no adequate remedy by appeal, we conditionally grant mandamus relief.

On April 5, 1994, Rosa Ramirez ("Ramirez"), the plaintiff and real party in interest, was a passenger in a car owned by Joe Ramirez and driven by Joe Ramirez, III. The car collided with a car driven by Velma Barber, the relator here. Rosa Ramirez sued Joe Ramirez, III and Barber for negligence and Joe Ramirez for negligent entrustment in the 92 nd District Court of Hidalgo County. Barber timely answered and requested a jury trial. A copy of her answer was sent to and received by both the trial court and Ramirez's counsel, Javier Villalobos. Despite receiving Barber's answer, Ramirez's counsel moved for a default judgment. The district clerk's office was behind on its filing. As a result, Barber's answer did not appear in the case file and the court rendered a default judgment against Barber on May 30, 1996, awarding Ramirez $300,000. Barber was not given notice of the default hearing. The trial court also severed Ramirez's claims against Barber from her remaining claims.

Barber timely moved to set aside the default judgment and for a new trial on June 24, 1996. A hearing on the motion for new trial was set for September 5, 1996, before the presiding judge, the Honorable Homer Salinas. On August 27, 1996, the parties filed a proposed agreed order setting aside the default judgment and granting a new trial. According to Rosie Salinas, the court coordinator, she stamped Judge Salinas's signature on the proposed order on September 3, 1996. Judge Salinas suffered a heart attack sometime in September 1996. At a hearing on November 4, 1996, Judge Norman Lanford imposed sanctions in the amount of $175.00 against Ramirez for discovery abuses. On November 13, 1996, Ramirez filed an amended petition against the original three defendants. In December 1996, Ramirez moved for a protective order and to quash a deposition notice, asserting that the default judgment erroneously granted on May 30, 1996, was final because the proposed agreed order for a new trial was never signed by the judge. The hearing on the protective order, held December 13, 1996, was presided over by Honorable Fidencio Guerra, Jr. At the hearing on the motion for protective order, Barber's attorney produced a copy of the agreed order bearing the rubber-stamped signature of Judge Salinas that she had obtained from the Judge's court coordinator. However, the copy of the agreed order in the court's file was unsigned. Judge Guerra determined that there were too many documents missing from the court's file to make a proper ruling, and rescheduled the hearing for January 1997. The record does not indicate that the hearing was ever reconvened or the motion ruled upon.

Ramirez subsequently moved to have the sanctions order declared void because the trial court's plenary jurisdiction expired before it was rendered. Ramirez contended that the motion for new trial was overruled by operation of law on August 13, 1996, because the original order setting aside the default judgment was still unsigned in the court file as of that date. Consequently, the trial court lost plenary jurisdiction on September 12, 1996, and the time for appeal had passed. The Honorable Edward Aparacio heard Ramirez's motion on January 28, 1997, and by order dated February 3, 1997, declared the sanctions order void because the court's plenary jurisdiction expired on September The record contains three affidavits from Rosie Salinas, Judge Salinas's court coordinator, stating that she placed Judge Salinas's rubber-stamped signature on the agreed order at his direction. Her affidavits differ on whether the judge directed the placement of his rubber-stamped signature on the agreed order in person or over the telephone. Rosie Salinas's first affidavit states that the agreed order was presented by her personally to Judge Salinas, and that at his instruction she affixed his stamped signature to the order on September 3, 1996, and forwarded the stamped order to the court clerk for entry of the judgment. Her second affidavit states that, although she cannot recollect the exact date, the order was presented by her to Judge Salinas either in person or by telephone. Also in her second affidavit, Rosie Salinas states that Judge Salinas was not present when she stamped his signature on the copy of the agreed order presented to her by Barber's attorney, and she "proceeded to stamp file it for her [Barber's attorney] as the Honorable Judge Salinas had previously instructed me that I could stamp file his signature on motions and orders such as this." Rosie Salinas's third affidavit states that, upon review of the docket sheet which reflects that Judge Salinas was in chambers presiding over court business on September 3, 1996, she can now state that she "presented the Agreed Order for execution by [the] Judge, who while in the courtroom on the bench or in chambers, instructed me to place his stamped signature thereto, which I did in his presence in the courtroom or chambers, on September 3, 1996." Attached to her third affidavit is a verified copy of the court's docket sheet and an affidavit from the court reporter showing that Judge Salinas was at the court on September 3, 1996, presiding over court business. After unsuccessfully seeking mandamus relief from the court of appeals, 960 S.W.2d 310, Barber petitioned this Court for writ of mandamus to compel the trial court to vacate its orders of February 3, 1997, and April 2, 1997, which ruled that the trial court's plenary jurisdiction expired on September 12, 1996.

12, 1996. Barber's motion to reconsider was overruled by order dated April 2, 1997.

"Mandamus will issue to correct a clear abuse of discretion when there is no adequate remedy by appeal." Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997). A trial court does not abuse its discretion if it bases its decision on conflicting evidence and some evidence supports its decision. See Griffin Indus. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 355 (Tex.1996). A trial court does, however, abuse its discretion when its decision is contrary to the only permissible view of the evidence. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

A trial court can grant a motion for new trial only by "written order signed." TEX.R. CIV. P. 329b(c). However, the rules do not provide any direction as to the method of signing. In the absence of a statute or rule prescribing the method of signing, other courts have held that a signature may be affixed in different ways, including by facsimile stamp. ¹ See, e.g., Paulus v. State, 633 S.W.2d 827, 849 (Tex.Crim.App.1981) ("The use of a stamp producing a facsimile of an original signature in signing legal documents has been upheld by this court."); see also, e.g., State v. Obrigewitch, 356 N.W.2d 105, 108 (N.D.1984); Ferguson v. Stilwill, 224 N.W.2d 11, 13 (Iowa 1974); Blackburn v. City of Paducah, 441 S.W.2d 395, 397 (Ky.1969); Oklahoma ex rel. Indep. Sch. Dist. No. 1 of Tulsa County v. Williamson, 352 P.2d 394, 395 (Okla.1960). A signature may legally be made not only by the signer personally, but by and through someone duly authorized by the signer. See, e.g., Stork v. State, 114 Tex.Crim. 398, 23 S.W.2d 733, 735 (Tex.Crim.App.1929); see also Op. Tex. Att'y Gen. No. JM-373 (1985) (relying on Stork, holding that the clerk of county or district courts can affix the judge's signature stamp to judgments and orders in criminal cases). Stork holds that the signature of a magistrate made by use of a rubber stamp is as While the court coordinator was under the judge's immediate authority and the affidavits are conclusive that she affixed the judge's facsimile signature at his direction, it is not clear that she did so in his presence. It may be unrealistic, however, to require the judge's actual physical presence at the time the signature is affixed in every case. A district court generally has no jurisdiction to conduct proceedings or render judgments and issue orders outside the county in which the lawsuit is pending. TEX. CONST. art. V, § 7; Howell v. Mauzy, 899 S.W.2d 690, 699 (Tex.App.--Austin 1994, writ denied). Many actions of the trial court must be made within strict time deadlines. There may be times when a judge is unable to be physically present at the courthouse, or it is necessary to sign a document that is not located in the county where the judge is, either because the judge has exchanged benches, TEX. CONST . art. V, § 11, is sitting elsewhere by assignment, TEX. GOV'T CODE § 74.052, or is away from the courthouse for other reasons. Even in multicounty districts, where judges are permitted to hear and determine certain matters and sign judgments and orders connected with those...