In re T.O., 02-20-00016-CV

• Decision Date: 09 April 2020
• Docket Number: No. 02-20-00016-CV,02-20-00016-CV
• Parties: IN RE T.O.
• Court: Texas Court of Appeals

IN RE T.O.

No. 02-20-00016-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

April 9, 2020

Original Proceeding

Trial Court No. 233-522021-12

Before Gabriel, Womack, and Wallach, JJ.

Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

Relator T.O. (Father) complains that the trial court's order granting Real Party in Interest A.H.'s (Mother's) "Amended Motion to Set Aside Default Judgment and for New Trial" (motion for new trial) in this suit affecting the parent-child relationship (SAPCR) is void. Because the trial court signed the order granting a new trial after its plenary power expired, we conditionally grant relief.

I. Statement of Facts

Father filed a petition to modify the parent-child relationship in April 2019, seeking to modify a 2012 order. The trial court signed the default Order in Suit to Modify Parent-Child Relationship on August 21, 2019. The trial court has provided this court with its electronic case management system entries for this case. The trial judge's August 21, 2019 entry provides, "Granted SAPCR after prove-up. Signed IWO and Record of Support." Mother timely filed her motion for new trial on September 13, 2019. See Tex. R. Civ. P. 329b(b). On September 17, 2019, Father filed a petition for writ of habeas corpus asking the trial court to compel Mother to turn the children over to him. The judge's case management system entry for that day provides, "Signed Order for issuance of a Writ."

The trial court set the hearing on the motion for new trial for October 3, 2019, but the trial court has advised us that the motion for new trial was heard on September 20, 2019, along with the petition for habeas corpus. The trial court's September 20, 2019 case management entry provides, "Denied Writ and Granted Motion to Set AsidePrior Order. Granted Fee request of [Father]. Ordered introduction of children to the parents for 2 hours on 9/21/2019 and in two weeks if necessary."

The trial court has advised us that Father supplemented his modification petition on September 25 and that Mother filed her counterpetition the next day. On September 30, 2019, the associate judge held a temporary-orders hearing and signed an associate judge's report and a pretrial conference order. The trial court's order granting the motion for new trial was not signed until December 10, 2019. Father filed this petition for writ of mandamus on January 9, 2020.

II. Standard of Review

For mandamus relief, a relator must establish that an order is void or a clear abuse of discretion with no adequate remedy by appeal. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). A void order is an abuse of discretion, and mandamus will issue to remedy it regardless of whether the relator has an adequate remedy by appeal. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Pixler, 584 S.W.3d 79, 84 (Tex. App.—Fort Worth 2018, orig. proceeding); In re Office of Att'y Gen. of Tex., 264 S.W.3d 800, 805 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding).

III. Discussion

When a trial court does not rule on a motion for new trial in a written order signed within 75 days after the judgment is signed, the motion is overruled by operation of law. Tex. R. Civ. P. 329b(c). The trial court has plenary power to grant a new trialor to vacate, modify, correct, or reform the judgment for an additional 30 days after the motion is overruled by operation of law. Tex. R. Civ. P. 329b(e). A trial court cannot set aside a valid judgment after its plenary power expires except by bill of review. Tex. R. Civ. P. 329b(f). An order (other than an order correcting a mere clerical error or vacating a void order or judgment) that is issued after the expiration of a trial court's plenary power is void. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding); see In re Elizondo, 544 S.W.3d 824, 829 (Tex. 2018) (orig. proceeding); In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig. proceeding); Sw. Bell Tel. Co., 35 S.W.3d at 605. "Mandamus relief is appropriate when a trial court issues an order after its plenary power has expired." Brookshire Grocery Co., 250 S.W.3d at 68; see also In re Lovito-Nelson, 278 S.W.3d 773, 776 (Tex. 2009) (orig. proceeding).

When the trial court did not sign a written order disposing of Mother's motion for new trial by November 4, 2019, the 75th day after the judgment was signed, the motion was overruled by operation of law. See Tex. R. Civ. P. 329b(c). The trial court's plenary power expired December 4, 2019. See Tex. R. Civ. P. 329b(e). The trial court therefore had no plenary power to grant the motion for new trial on December 10, 2019, see Tex. R. Civ. P. 329b(f), and the order purporting to do so was void. See Elizondo, 544 S.W.3d at 829; Brookshire Grocery Co., 250 S.W.3d at 72; Sw. Bell Tel. Co., 35 S.W.3d at 605; Dickason, 987 S.W.2d at 571.

Mother raises several arguments to dissuade this court from granting Father mandamus relief. None of them have merit.

First, Mother argues that the trial court did not abuse its discretion by signing the order granting the motion for new trial and that Father could have appealed any forthcoming final judgment. However, the trial court abused its discretion by signing the void order, and Father's ability to appeal a future void judgment does not block mandamus relief from this void order. See Sw. Bell Tel. Co., 35 S.W.3d 605; Pixler, 584 S.W.3d at 84; Office of Att'y Gen. of Tex., 264 S.W.3d at 805.

Second, Mother argues that the default judgment was not final under Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195, 200 (Tex. 2001). "[A]n order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it" does. Id. at 205; see also Elizondo, 544 S.W.3d at 827-28. If the order's finality language is clear and unequivocal, we do not examine the record. Elizondo, 544 S.W.3d at 828, 829. However, if the order's finality language is not clear and unequivocal, we do examine the record to determine finality. See Pope-Nixon v. Howard, No. 05-18-01215-CV, 2019 WL 911745, at *1 (Tex. App.—Dallas Feb. 25, 2019, no pet.) (mem. op.) (citing Elizondo, 544 S.W.3d at 827-28).

Although the default judgment here includes a Mother Hubbard clause expressly denying all relief not granted, a Mother Hubbard clause is not a conclusive sign of finality. In re R.R.K., 590 S.W.3d 535, 541 (Tex. 2019); Lehmann, 39 S.W.3d at 206-07. The default judgment also does not contain all of the parties' required identifying information. See Tex. Fam. Code Ann. § 105.006(a); R.R.K., 590 S.W.3d at 542-43."[W]hen finality is contested, and the order lacks required statutory elements, a reviewing court should examine the record to determine finality under Lehmann and its progeny." R.R.K., 590 S.W.3d at 542.

A judgment lacking clear finality language must dispose of all parties and all issues to be final. Lehmann, 39 S.W.3d at 195. When necessary, we review the record to make this determination. Id. at 205-06. Here, the mandamus record makes clear that the default judgment disposed of all parties and all claims pending on August 21, 2019. The case management entry for August 21, 2019 states that the trial court "[g]ranted SAPCR after prove-up." The 26-page default judgment states that

• Father announced ready for trial;

• Mother did not appear and wholly made default;

• A jury was waived; and

• The modification requested in Father's petition is in the children's best interest and is granted.

The default judgment also contains required statutory warnings and disposes of all of Father's claims raised in his modification petition—child support, medical support, unreimbursed medical expenses, conservatorship, possession and access, costs, attorney's fees, and postjudgment interest on those costs and attorney's fees. The one-page memorandum held interlocutory in R.R.K. left possession and child support unresolved and omitted all statutorily required warnings. R.R.K., 590 S.W.3d at 541-43. The default judgment here leaves no issue unresolved. We therefore hold that it is a final judgment.

Third, Mother relies on a misstatement of Rule 306a(2) to argue that the trial court's failure to sign an order within its plenary power does not invalidate it. That rule provides,

2. Date to be shown. Judges, attorneys and clerks are directed to use their best efforts to cause all judgments, decisions and orders of any kind to be reduced to writing and signed by the trial judge with the date of signing stated therein. If the date of signing is not recited in the judgment or order, it may be shown in the record by a certificate of the judge or otherwise; provided, however, that the absence of a showing of the date in the record shall not invalidate any judgment or order.

Tex. R. Civ. P. 306a (emphasis added). The absence of a date from a written order is not the issue in this case.

Fourth, Mother argues that the oral rendition granting the new trial was valid. The parties did not provide us with a record showing an oral rendition granting the new trial. The September 20, 2019 case management entry provides that the trial court "[g]ranted Motion to Set Aside Prior Order." Even if that entry did indicate that a rendition occurred, an oral rendition is insufficient to grant a new trial. The Supreme Court of Texas has consistently held that Rule 329b(c) requires a written order to grant a new trial. Lovito-Nelson, 278 S.W.3d at 775-76.¹

Fifth, Mother argues that Father lost any right to mandamus relief by participating in trial court proceedings after the trial court orally granted a new trial and by delaying the filing of his petition for writ of mandamus. Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles. In re Bahn, 13 S.W.3d 865, 871 (Tex. App.—Fort Worth 2000, orig. proceeding). One such principle is...