in Re Jerry D. Patchen ( 2017 )

Opinion issued March 14, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00947-CV
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IN RE JERRY D. PATCHEN, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Jerry D. Patchen, filed a petition for writ of mandamus requesting
that we compel the trial court to vacate an order granting a new trial because the
order was entered outside of the trial court’s plenary power.1 We conditionally grant
the petition.
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The underlying case is Jerry D. Patchen v. Maria Carmen Gallegos and Margarito
Rodriguez, cause number 1044658, pending in the County Civil Court at Law No.
4 of Harris County, Texas, the Honorable Roberta Lloyd presiding.
Background
The underlying case involves a breach-of-contact action brought by Patchen
against real-parties-in-interest Maria Carmen Gallegos and Margarito Rodriguez
(together, “Real Parties”), a husband and wife who were former clients. On October
1, 2014, visiting judge Lamar McCorkle granted Patchen a default judgment against
Gallegos. Patchen then moved for a default judgment against Rodriguez, which
visiting judge Sharolyn Wood signed on October 5, 2015. The second default
judgment resolved all claims against all parties and notes, “The partial default
judgment as to Defendant Maria Carmen Gallegos is hereby made final and is
attached as Exhibit A.” On the same day the final judgment was signed, the trial
court clerk mailed copies of the judgments to Real Parties.
On November 5, 2015—thirty-one days after Judge Wood signed the final
judgment—Real Parties filed a motion for new trial. Neither Gallegos nor Rodriguez
alleged that they did not receive notice of the final judgment.2 On January 8, 2016,
Judge Wood signed an order granting a new trial. Ten months later, on November 4,
2016, Patchen filed a motion to vacate the new trial order on grounds that it was void
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In a response to the mandamus petition, Real Parties claim that (1) they did not
answer the motions for default judgment because “they believed the case had been
dismissed and were not aware that the case had been reinstated” and (2) “they
believed the bankruptcy case filed by Margario Rodriguez had stayed the entire
case, and that [Patchen] could not proceed against them.” These arguments,
however, fail to dispute that timely notice of the final judgment was received.
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for lack of jurisdiction because the motion for new trial was filed after the trial
court’s plenary power expired. The motion to vacate has not been ruled upon, and
Patchen asserts that the trial court refused to rule upon the motion, maintaining that
the visiting trial judge who issued the order must hear the motion and would not be
available for a hearing until after January 1, 2017.
On November 30, 2016, Patchen filed a petition for writ of mandamus
requesting that this Court compel the trial court to vacate the new trial order or,
alternatively, compel the trial court to hear his motion to vacate. In conjunction with
the mandamus petition, Patchen filed a motion to stay the underlying trial set for
December 5, 2016 pending our determination of the petition. This Court issued an
order granting the stay and noted that the stay did not preclude the trial court from
ruling on Patchen’s pending motion to vacate the new trial order.
On February 9, 2017, this Court requested that the parties provide a status
report regarding whether the motion to vacate had been ruled upon by either the trial
court or the visiting judge and whether any additional actions had been taken to
obtain a ruling. Patchen’s counsel filed a status update stating that Patchen had
contacted the trial court’s coordinator to request a hearing on his motion to vacate
but was informed that “the trial court will not take any action in this case until it
receives a mandate from this Court.”
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Standard of Review
Generally, to be entitled to mandamus relief, the relator must demonstrate that
the trial court abused its discretion and that it has no adequate remedy by appeal. See
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.
proceeding). A “trial court commits a clear abuse of discretion when it refuses to
exercise its discretion to hear and rule on pending motions.” Grant v. Wood, 916
S.W.2d 42, 45 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding). A trial court
also clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable
as to amount to a clear prejudicial error of law. Walker, 827 S.W.2d at 839. A trial
court has no discretion in determining what the law is or in applying the law to the
facts. Id. at 840. Thus, a clear failure by the trial court to analyze or apply the law
correctly will constitute an abuse of discretion. In re Allstate Cty. Mut. Ins. Co., 85
S.W.3d 193, 195 (Tex. 2002) (orig. proceeding). Mandamus relief is proper when
the trial court issues a void order, and the relator need not demonstrate the lack of
an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.
2000) (orig. proceeding); In re Flores, 111 S.W.3d 817, 818 (Tex. App.—Houston
[1st Dist.] 2003, orig. proceeding) (per curiam).
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Discussion
A trial court generally retains jurisdiction over a case for thirty days after it
signs a final judgment, during which time the trial court has plenary power to change
its judgment. See TEX. R. CIV. P. 329b(a) (“A motion for new trial, if filed, shall be
filed prior to or within thirty days after the judgment or other order complained of
is signed.”); TEX. R. CIV. P. 329b(d) (“The trial court, regardless of whether an
appeal has been perfected, has 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(f) (“On expiration of the time within which the trial
court has plenary power, a judgment cannot be set aside by the trial court except by
bill of review for sufficient cause, filed within the time allowed by law . . .”). Certain
post-judgment motions, including a motion for new trial, if filed within this initial
thirty day period, extend the trial court’s plenary jurisdiction. See TEX. R. CIV. P.
329b(e). After expiration of plenary power, a trial court still may sign an order
declaring a prior judgment or order to be void as having been signed after expiration
of the court’s plenary power. See TEX. R. CIV. P. 329b(f); In re Martinez, 478 S.W.3d
123, 126 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding).
In this case, the final judgment was signed on October 5, 2015 and no motion
was filed extending the trial court’s plenary power before it expired thirty days later
on November 4, 2015. See TEX. R. CIV. P. 329b. The motion for new trial filed on
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November 5, 2015 was untimely filed after the trial court had already lost plenary
power. Thus, the January 8, 2016 order granting the new trial was void because it
was entered 64 days after the court’s plenary power expired on November 4, 2016.
See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (“Judicial action
taken after the court’s jurisdiction over a cause has expired is a nullity.”); In re T.G.,
68 S.W.3d 171, 177 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (“Judicial
action taken after the trial court’s plenary power has expired is void.”). Although the
trial court maintained the power to declare the new trial order void as having been
signed after expiration of its plenary power, the trial court failed to issue such an
order. See TEX. R. CIV. P. 329b(f).
In their response to the mandamus petition, Real Parties argue that Patchen
has not demonstrated that the trial court refused to act on his motion to vacate. The
record, however, contains an uncontradicted affidavit from Patchen detailing his
requests for a hearing on the motion and the trial court’s refusal to set a hearing
based upon its belief that the motion must be heard by the visiting judge who issued
the new trial order. Moreover, in response to this Court’s request for a status update,
Patchen averred that another attempt was made to set the motion for hearing, but the
trial court coordinator indicated that the trial court would not act unless mandated
by this Court. Accordingly, Patchen has demonstrated the trial court’s refusal to act
upon his pending motion to vacate the new trial order.
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Real Parties further argue that Patchen consented to the trial court’s
jurisdiction because his motion to vacate was filed ten months after the new trial
order was signed. But it is well-established that a trial court’s lack of subject-matter
jurisdiction cannot be waived by failing to object or by participating in proceedings.
See In re Crawford & Co., 458 S.W.3d 920, 928, n.7 (Tex. 2015) (holding that party
cannot waive complaint regarding trial court’s lack of subject-matter jurisdiction);
Wilmer–Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001) (“As
a general rule, a court cannot acquire subject-matter jurisdiction by estoppel.”);
Glassman v. Goodfriend, 347 S.W.3d 772, 783 (Tex. App.—Houston [14th Dist.]
2011, pet. denied) (stating that subject-matter jurisdiction cannot be conferred by
consent or waiver).
Conclusion
Because the new trial order was void, we hold that the trial court abused its
discretion in failing to vacate the order and we need not determine whether Patchin
lacks an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d at 605;
In re Flores, 111 S.W.3d at 818. Accordingly, we conditionally grant the petition
for writ of mandamus and order the court to vacate its order granting a new trial. The
writ will only issue if the court fails to comply.
PER CURIAM
Panel consists of Justices Keyes, Bland, and Huddle
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