In re Sheppard

• Decision Date: 30 March 2006
• Docket Number: No. 01-05-00375-CV.,No. 01-05-00449-CV.,01-05-00375-CV.,01-05-00449-CV.
• Citation: 193 S.W.3d 181
• Parties: In re Robert D. SHEPPARD, M.D. and EmCare, Inc., Relators.
• Court: Texas Court of Appeals

193 S.W.3d 181

In re Robert D. SHEPPARD, M.D. and EmCare, Inc., Relators.

No. 01-05-00375-CV.

No. 01-05-00449-CV.

Court of Appeals of Texas, Houston (1st Dist.).

March 30, 2006.

COPYRIGHT MATERIAL OMITTED

Christopher Dean Demeo, Richard A. Sheehy, Sheehy, Serpe & Ware, Houston, TX, for Appellant.

David A. Bickham, Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices JENNINGS and ALCALA.

OPINION

ELSA ALCALA, Justice.

Relators, Robert D. Sheppard, M.D. and EmCare, have filed petitions for a writ of mandamus or, in the alternative, for a writ of prohibition, to challenge an order signed on January 31, 2005, by the respondent trial court,¹ which denied relator's motion to dismiss the underlying lawsuit filed by the real party-in-interest, Louis Ochoa, as plaintiff. In their petitions here,² as in the trial court, relators contend that the trial court lost plenary power over the lawsuit on May 31, 2004, because, on April 30, 2004, the trial court had dismissed Ochoa's claims with prejudice against the only defendant that Ochoa had served. Relators contend that the dismissal constituted a final judgment because the only remaining defendant, Cooper Manufacturing Corporation (Cooper), was never served and did not appear. We conclude that the mandamus record demonstrates that, although Ochoa had not effected service on Cooper, Ochoa intended to serve Cooper and intended to continue his claims against Cooper. We therefore deny relators' petition for a writ of mandamus.

Background

The underlying lawsuit is a negligence action for personal injuries claimed by Ochoa, whose pertinent pleadings allege that he sustained serious injuries in an accident on premises owned and operated by Cooper, and that Dr. Sheppard negligently treated Ochoa's injuries at Cypress Fairbanks Medical Center (the hospital). On August 29, 2003, Ochoa filed his original petition, in which he identified Cooper, the hospital, and Dr. Sheppard as defendants.³ The hospital, however, was the only defendant served with notice of the lawsuit. Ochoa attempted service, but did not succeed in serving defendant Cooper, described by Ochoa as a "Texas corporation which may be served with process by serving its registered agent, A.C. Teichgraeber" at a Houston address. Ochoa filed a first amended petition on November 21, 2003, in which he reasserted claims against the hospital and Cooper, but omitted Dr. Sheppard from the list of named defendants. The first amended petition was not served on Cooper.

On April 30, 2004, eight months after the original petition was filed, the trial court ordered Ochoa's claims against the hospital dismissed with prejudice "for failure to timely file an expert report that conforms to the expert reporting requirements under § 13.01 of Article 4590i" of the Medical Liability Improvement Act.⁴ Four months after dismissal of the hospital, on August 13, 2004, Ochoa filed a second amended petition. This petition included both Sheppard and EmCare as named defendants. Relator Sheppard was served on September 3, 2004; relator EmCare was served on September 16, 2004.

On November 11, 2004, relators moved to dismiss Ochoa's claims. They argued in their motion that the trial court's plenary power had expired on May 30, 2004 because (1) Cooper had not been served and had not answered, and, therefore, (2) the April 30, 2004 dismissal of the hospital pursuant to 4590i constituted a final judgment as to all parties and claims. Their motion alternatively requested that respondent enter a new docket-control order with a new trial date. According to the existing docket-control order, the deadline to join parties was August 8, 2004, and trial was set for December 6, 2004.

Ochoa responded to relators' motion to dismiss on January 3, 2005. As in response to relators' petitions here, Ochoa argued that neither the parties, the respondent trial court, nor the district clerk had "treated" the April 30, 2004 dismissal of the hospital as a final, appealable order. Ochoa supported his response with the affidavit of his counsel, who stated that Ochoa had "never abandoned his suit against Cooper," offered explanations for not serving Cooper, and also stated that Ochoa was pursuing additional parties. Ochoa contends that he thus demonstrated his intent to serve Cooper, the unserved defendant, in accordance with M.O. Dental Lab. v. Rape, 139 S.W.3d 671, 674 (Tex. 2004). On January 31, 2005, the trial court denied relator's motion to dismiss.

Availability of Mandamus Relief

A court of appeals may issue a writ of mandamus, "agreeable to the principles of law regulating those writs," against a judge of a district court. TEX. Gov'T CODE ANN. § 22.221(b)(1) (Vernon 2004). Mandamus is an extraordinary remedy, that will issue only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex.2005) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004)); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985); In re Taylor, 113 S.W.3d 385, 389 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding).

A trial court abuses its discretion when it acts arbitrarily or unreasonably and without reference to any guiding rules or principles. See Walker, 827 S.W.2d at 839; In re Taylor, 113 S.W.3d at 389. The abuse-of-discretion standard has different applications in different circumstances. Walker, 827 S.W.2d at 839. Because a trial court has no discretion in determining what the law is, which law governs, or how to apply the law, we review this category of discretionary rulings de novo. See Walker, 827 S.W.2d at 840. In contrast, when we review a ruling that results from the trial court's having resolved underlying facts, we must defer to the trial's factual resolutions and any credibility determinations that may have affected those resolutions and may not substitute our judgment for the trial court's judgment in those matters. See id. at 839-40.

"Jurisdiction" refers to a court's authority to adjudicate a case. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003). Whether a trial court has jurisdiction is a question of law. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) (subject-matter jurisdiction); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002) (personal jurisdiction).

A relator who demonstrates that the order or judgment challenged is void need not demonstrate that remedy by appeal is inadequate. In re S.W. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000) (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)). A void judgment results when the trial court had (1) no jurisdiction over the parties or subject matter, (2) no jurisdiction to render the judgment, or (3) no capacity to "act as a court." State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995). Errors that render a judgment merely voidable, as opposed to void, may be corrected through the customary appellate process or other proceedings. See id; see also Decker v. Lindsay, 824 S.W.2d 247, 249 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding) (holding that void order must exceed court's authority to act and not be merely erroneous). It is well-settled that an order signed after the trial court's plenary power has expired is void. See State ex rel. Latty, 907 S.W.2d at 486; In re Taylor, 113 S.W.3d at 390; In re Miranda, 142 S.W.3d 354, 356 (Tex.App.-El Paso 2004, orig. proceeding).

Plenary Power

Relators contend that the respondent trial court's April 30, 2004 order dismissing the hospital constituted a final judgment as a matter of law over which the trial court lost plenary power 30 days later, specifically, on May 31, 2004. A trial court retains plenary power over its judgment until that judgment becomes final. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993). "[R]egardless of whether an appeal has been perfected," the trial court retains "plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed." TEX.R. Civ. P. 329b(d). The date on which the trial court signs the judgment "determine[s] the beginning of the periods . . . for the court's plenary power." TEX.R. Civ. P. 306a(1). Parties may extend this initial 30-day period of plenary power by timely filing a motion that seeks a substantive change in the judgment within that 30-day period. TEX.R. Civ. P. 329b(a), (e), (g); see Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000); In re T.G., 68 S.W.3d 171, 176 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (op. on reh'g).⁵

No party filed a postjudgment motion seeking a substantive change in the respondent trial court's dismissal order within 30 days after the court signed that order on April 30, 2004. If the dismissal order was a final order as to all parties and all claims, then the trial court lost plenary power on the 30th day after the April 30, 2004, or on May 31, 2004.

Unserved Defendants—Finality

A judgment is final "if it disposes of all pending parties and claims in the record." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). To determine whether a judgment disposes of all pending claims and parties, it may be necessary for the appellate court to look to the record in the case. Id. The record "illumin[ates] whether an order . . . that all parties appear to have treated as final may be final despite some vagueness in the order itself." Id. There must be some "clear indication that the trial court intended the order to completely dispose of the entire case." Id. at 205. The supreme court further noted that "an order that all parties appear to have treated as final may be final despite some vagueness in the order itself, while an order that some party should not reasonably have regarded as final...