Dean's Campin' Co. v. Hardsteen, No. 13-05-468-CV (Tex. App. 8/29/2008), 13-05-468-CV.

CourtCourt of Appeals of Texas
Writing for the CourtWittig
PartiesDEAN'S CAMPIN' CO., Appellant, v. PETER HARDSTEEN, ET AL., Appellees.
Docket NumberNo. 13-05-468-CV.,13-05-468-CV.
Decision Date29 August 2008

Page 1

DEAN'S CAMPIN' CO., Appellant,
No. 13-05-468-CV.
Court of Appeals of Texas, Thirteenth District, Corpus Christi.
Memorandum Opinion Delivered and Filed August 29, 2008.

On Appeal from the 278th District Court of Grimes County, Texas.

Before Justice BENAVIDES, VELA, and WITTIG1.


Memorandum Opinion by Justice WITTIG.

Based upon a party's motion, the trial court dismissed this cause for want of prosecution after remand. This is the second appeal of this case. In the first appeal, appellant, Dean's Campin' Co., successfully argued to the Houston Court of Appeals that it should be entitled to statutory retailer indemnity against appellee Rexhall Industries. See Dean's Campin' Co. v. Hardsteen, No. 01-00-01190-CV, 2002 WL 1980840, *1 (Tex. App.-Houston [1st Dist.] Aug. 29, 2002, pet. denied) (not designated for publication). It also successfully argued that its cross claims against appellees, Peter Hardsteen and Texas Farm Bureau, were improperly dismissed. Id. The Houston court ruled that appellant was entitled to indemnity against Rexhall and remanded for determination of the amount of appellant's attorney's fees and costs, which were improperly denied by the trial court. Id. The court also reversed and remanded the trial court's dismissal of the cross claims of Hardsteen and Texas Farm Bureau.2 To date, the trial court has not complied with the original mandate of the court of appeals to award costs wrongfully denied to appellant in the original judgment and to determine the amount of attorney's fees under section 82.002(a) of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 82.002(a) (Vernon 1997).

In a single issue, appellant asserts that the trial court abused its discretion by dismissing appellant's claims against appellees for want of prosecution after the claims were remanded. We agree and reverse and remand.

I. Jurisdiction

Appellees claim that this Court lacks jurisdiction to hear this appeal. The Houston Court of Appeals issued its mandate on September 29, 2003. When appellant requested mediation or a trial setting in June, 2004, appellees immediately filed a motion to dismiss for want of prosecution. A hearing was held August 13, 2004, some ten months after the appellate court mandate was filed with the trial court. The first order of dismissal was then signed the same day. Appellant's motion for rehearing was granted, and the case was reinstated and ordered to mediation on October 8, 2004.

On October 12, 2004 appellees filed a motion to vacate the order of reinstatement. Appellees gave notice of oral hearing on their Joint Motion to Vacate the Court's Order of Reinstatement and Order for Mediation for November 12, 2004. Yet on November 4, 2004, the trial judge signed two conflicting orders, one of which appellees admit is interlocutory.3 The record reflects no notice of hearing either on November 4, 2004, when the court signed the conflicting orders, or on November 12, 2004, the date appellees initially notified the parties that a hearing would be held. According to appellant, the hearing was re-noticed to be heard on December 16, 2004, and, again, the matter was requested to be moved to January 14, 2005. In any event, the trial court signed the conflicting orders on November 4, 2004, without a hearing or notice to the parties, and apparently did not grant a hearing on any of the requested dates. The court made no docket entry regarding its conflicting rulings on November 4, 2004.

One of the November orders denied appellees' motion to vacate the order reinstating the case and ordering mediation while the other order granted the same motion, reinstating the prior order of dismissal. Appellees argue that the order reinstating the prior dismissal was a final judgment and began appellant's timetable for appeal. We disagree.

Between the time of the conflicting November 4, 2004 orders and the final order of dismissal, dated March 11, 2005, the parties continued to serve discovery and file objections to discovery. During that same period of time, the trial court issued a memorandum to the parties directing them to determine the status of the case.

First, we must determine whether the trial court's dismissal order(s), which were outside of the scope of the appellate mandate in this case, are void or merely voidable. See In re State, 159 S.W.3d 203, 206 (Tex. App.-Austin 2005, orig. proceeding). In Madeksho v. Abraham, Watkins, Nichols, & Friend, 112 S.W.3d 679, 685 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (en banc), the Houston Court of Appeals thoroughly discussed this issue and concluded that a trial court may abuse its discretion by issuing an order beyond the scope of an appellate mandate, but that the issue of subject-matter jurisdiction is not raised. See id. The Dallas Court of Appeals had previously expressed the opposite position. See Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex. App.-Dallas 1998, no pet.); cf. Kenseth v. Dallas County, 126 S.W.3d 584, 599 (Tex. App.-Dallas 2004, pet. denied) (holding an order was not void where trial court misinterpreted mandate).

In the past, a number of courts have held that in cases involving remand with specific instructions, the district court is limited to complying with the instructions and cannot relitigate issues controverted at the former trial. Seydler v. Keuper, 133 S.W.2d 189, 190 (Tex. Civ. App.-Austin 1939, writ ref'd). The district court's authority is limited to trying only those issues specified in the mandate. V-F Petroleum v. A.K. Guthrie Op. Co., 792 S.W.2d 508, 510 (Tex. App.-Austin 1990, no writ); Texacally Joint Venture v. King, 719 S.W.2d 652, 653 (Tex. App.-Austin 1986, writ ref'd n.r.e.). Where an appellate court reversed and remanded a case for entry of a judgment nunc pro tunc, and a party then filed a motion for remittitur with the trial court, the trial court correctly denied the motion; the trial court had jurisdiction only to enter the nunc pro tunc judgment. Seydler, 133 S.W.2d at 190 (citing Wingfield v. Bryant, 614 S.W.2d 643, 645 (Tex. Civ. App.-Austin 1981, writ ref'd n.r.e.) ("It did not have the jurisdiction to change the judgment in any other manner."); see Los Campeones, Inc. v. Valley Int'l, 591 S.W.2d 312, 313-14 (Tex. Civ. App.-Corpus Christi 1979, no writ) (a trial court's hearing and order after issuance of an appellate court's mandate exceeded the mandate's scope and involved more than ministerial duty of enforcing the judgment); Brock v. Briggs, 223 S.W.2d 645, 647 (Tex. Civ. App.-San Antonio 1949, no writ) (where an appellate court reversed and remanded with instructions for rendition of judgment, and motions were filed to set aside the judgment, the trial court was required to carry out the appellate court's direction); see also Martin v. Credit Protection Ass'n, 824 S.W.2d 254, 256 (Tex. App.-Dallas 1992, writ dis'm, w.o.j.).

Prior to the Texas Supreme Court's decision in Dubai, many jurisdictions held that when an appellate court renders a judgment, the district court has no jurisdiction to review or to interpret it. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000) (all claims are presumed to fall within the jurisdiction of the district court unless the Legislature or Congress has provided that they must be heard elsewhere); see, e.g., Myers v. Myers, 515 S.W.2d 334, 335 (Tex. Civ. App.-Houston [1st Dist.] 1974, writ dism'd w.o.j.) ("It must observe and carry out the mandate of the appellate court. Its orders carrying out the mandate are ministerial.") (citing Conley v. Anderson, 164 S.W. 985 (Tex. 1913)); see also Schliemann v. Garcia, 685 S.W.2d 690, 692 (Tex. App.-San Antonio 1984, no writ). In Dubai, the court observed that "the modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction." Dubai, 12 S.W.3d 76 (citing Restatement (Second) of Judgments § 11 cmt. e, at 113 (1982)). "Jurisdiction refers to a court's authority to adjudicate a case." Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003). So long as the court entering a judgment has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the judgment is not void. Id.; Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). "A court's action contrary to a statute or statutory equivalent" that does not involve jurisdiction merely renders the judgment voidable so that it may be "corrected through the ordinary appellate process or other proper proceedings." Reiss, 118 S.W.3d at 443.

We therefore conclude that the trial court had subject matter jurisdiction even if it erroneously ignored the mandate of the Houston court of appeals. Madeksho 112 S.W.3d at 685; In re State, 159 S.W.3d at 205; see also Dubai, 12 S.W.3d at 76.

II. Final Judgment

Appellees contend that one of the conflicting orders of November 4, 2004 disposes of all claims and states with "unmistakable clarity" that it is a final judgment. See Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (holding that a judgment is final for purposes of appeal "if and only if either it actually disposes of all claims and parties then before the court, or it states with unmistakable clarity that it is a final judgment."). First, we note the order does not state with unmistakable clarity it is a final judgment. Rather, it provides in part "the Court's order of Reinstatement and Order for Mediation of October 8, 2004 is vacated" and "the Court's order of dismissal dated August 13, 2004, is reinstated and this case is dismissed for want of prosecution as to all claims asserted in the cause by Dean's Campin' Co. against Texas Farm Bureaus (sic) Insurance Companies, Peter Hardsteen, Pauline Hardsteen, and Rexhall Industries, Inc." Contemporaneously, the same trial judge, on the same day, and at the same time, signed a...

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