In Re Shahin Jamea
| Decision Date | 29 July 2010 |
| Docket Number | NO. 14-10-00228-CV,14-10-00228-CV |
| Parties | IN RE SHAHIN JAMEA, Relator |
| Court | Texas Court of Appeals |
WRIT OF MANDAMUS
In this original proceeding we must determine whether certain orders the trial court signed are void. Relator, Shahin Jamea has filed a petition for writ of mandamus asking this court to compel the Honorable Randy Wilson, presiding judge of the 157th District Court of Harris County, to set aside as void all orders signed in the trial court after November 21, 2009, when the relator claims the trial court's plenary power expired. See Tex. Gov't Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52. We conditionally grant the petition.
Jamea, the plaintiff in the trial court, brought suit against real parties in interest, Trinity Universal Insurance Company ("Trinity Universal"), Security National Insurance Company, and Trinity Universal Insurance Company of Kansas, Inc. (hereinafter collectively, "Trinity"), defendants below, seeking a declaratory judgment. According to Jamea's live pleading, Trinity forwarded correspondence to him that Jamea claimed that he never signed an indemnification agreement, and that the signature on the agreement was not his. Jamea sought a declaratory judgment that the signature on the indemnification agreement was not his, he was not a party to the agreement, and he was not liable for any amounts under the agreement.
Trinity Universal filed a counterclaim for breach of contract, alleging that the lawsuit arose out of a "beverages and gross receipt" surety bond issued by Trinity Universal to Isis Partners, LP, as principal and Jamea as guarantor. Trinity Universal claimed that Jamea signed the application for the bond and the indemnity agreement. Trinity Universal then issued the "beverages and gross receipts" surety bond and the Texas Comptroller of Public Accounts subsequently made a demand on Trinity Universal to pay $30,000 in unpaid taxes owed by Isis. Trinity Universal was obligated under the terms of the bond to pay, and paid, the $30,000 unpaid balance. Trinity Universal alleged that Jamea was required, per the agreement, to repay the bond, but failed to do so. Under the indemnity agreement Trinity Universal claimed was signed by Jamea as a condition for the issuance of the bond, Trinity Universal sought to recover the funds it paid to the State.
Jamea filed his no-evidence motion for summary judgment on Trinity Universal's breach-of-contract claim on August 19, 2009. The no-evidence summary judgment motion was set for submission on September 14, 2009, at which time the trial court granted Jamea's no-evidence motion for summary judgment as follows:
On October 16, 2009, relator filed the following notice of nonsuit:
Plaintiff Shahin Jamea hereby gives notice to this Court and to all parties to this suit that, in accordance with Rule 162, he is taking a nonsuit without prejudice against all claims against all Defendants.
The trial court signed an order of nonsuit on October 22, 2009.
On January 11, 2010, Trinity filed a motion for resubmission or rehearing on Jamea's no-evidence motion for summary judgment. In its motion, Trinity argued that its response to the no-evidence motion for summary judgment was mailed on September 8, 2009, and therefore, was filed timely, but was not file-marked by the court until September 15, 2009.1 Trinity requested that the trial court rehear Jamea's no-evidence motion for summary judgment, consider Trinity's response to the motion, and deny the motion. Trinity asserted, because the case was still active in the court's computer system and there was no final and appealable judgment in the court's record, the court still had plenary power to hear the matter. Trinity's motion for rehearing was not sworn and didnot make reference to Texas Rule of Civil Procedure 306a, entitled "Periods to Run From Signing of Judgment".
In a phone conference with the parties' counsel on January 12, 2010, the trial court requested briefing regarding whether the court still had plenary power. Trinity filed its unsworn written response in a letter to the trial court on January 19, 2010. Trinity argued that, pursuant to Rule 306a, the trial court had jurisdiction to grant relief. The card mailed by the clerk regarding the trial court's October 22, 2009 order states, "BE ADVISED ON 10-22-10 THE FOLLOWING ACTIVITY OCCURRED ORDER OF PARTIAL NONSUIT SIGNED AS TO THE FOLLOWING PARTIES-JAMEA, SHAHIN." Trinity argued that the "partial nonsuit" language on the postcard did not comply with the notice requirement of Rule 306a(3) because notice is required for a "final judgment or other appealable order." See Tex. R. Civ. P. 306a(3) (). Trinity did not argue that the postcard was required to state that the judgment was final and appealable, but that a "partial nonsuit" would indicate some claims and/or parties still existed, and would lead to the conclusion that there was no final or appealable judgment. Therefore, Trinity argued, it never had notice of a final or appealable judgment. Trinity stated that on January 5, 2010, it obtained actual knowledge, that there was a signed order on January 5, 2010, when its counsel contacted Jamea's attorney for a certificate of conference on a motion for continuance of the January 18, 2010 trial date. Therefore, according to Trinity, January 20, 2010 was the ninety-day deadline to timely file a motion pursuant to Rule 306a.
In an order dated January 20, 2010, the trial court granted Trinity's motion for resubmission or rehearing, vacated the September 14, 2009 order granting the noevidence motion for summary judgment, ordered that the no-evidence motion forsummary judgment would be reconsidered in light of Trinity's timely-filed response, and set the no-evidence motion for summary judgment for hearing/submission on February 19, 2010.
On February 12, 2010, Jamea filed a motion to dismiss for lack of jurisdiction, arguing that, while the order granting the no-evidence motion for summary judgment was interlocutory when it was signed, it became final when Jamea nonsuited all of his claims against all parties, and the trial court's plenary power expired thirty days after it granted the motion because no timely post-judgment motion extending the court's plenary power had been filed. Jamea's motion to dismiss was also set for submission on February 19, 2010. On that date, the trial court denied Jamea's no-evidence motion for summary judgment and motion to dismiss. Trinity also nonsuited its suit against Jamea.
On March 12, 2010, Jamea filed a petition for writ of mandamus initiating this original proceeding and asserting that all orders the trial court signed after November 21, 2009, are void because the trial court's plenary power had expired. Jamea asks this court to compel the trial court to vacate as void its (1) January 20, 2010 order granting Trinity's motion for resubmission or rehearing and vacating the trial court's September 14, 2009 summary judgment order, and (2) February 19, 2010 order denying Jamea's no-evidence motion for summary judgment. Jamea also requests that this court compel the trial court to withdraw its order denying his motion to dismiss and grant the same.
To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court abused its discretion and there is no adequate remedy by appeal. In re Gulf Exploration, LLC, 289 S.W.3d 836, 842 (Tex. 2009) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze orapply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). When an order is void, the relator need not show that he does not have an adequate appellate remedy, and mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam).
Tex. R. Civ. P. 162. A claimant for affirmative relief must allege a cause of action, independent of the plaintiff's claim, on which the claimant could recover compensation or relief, even if the plaintiff could recover compensation or relief. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (orig. proceeding). Though the date on which the trial court signs an order dismissing the suit is the "starting point for...
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