in Re City of Houston ( 2020 )

Opinion issued April 28, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00805-CV
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IN RE CITY OF HOUSTON, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, the City of Houston, has filed a petition for writ of mandamus
asserting that the trial court modified a final judgment after its plenary power
expired.1 The City requests that our court compel the trial court to set aside its
modified order. We conditionally grant the petition.
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The underlying case is Dario Soto v. Cameron Mitchell Davis, cause number 2019-
09276, pending in the 164th District Court of Harris County, Texas, the Honorable
Caroline Baker presiding.
Background
Plaintiff in the underlying case sued a City of Houston police officer for
injuries arising from an automobile accident. The police officer (who was
represented by the City of Houston’s legal department) filed a motion to dismiss
pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code,
asserting that he was acting in his capacity as an employee of the City and therefore
the suit must be filed against the City. The officer attached a proposed final judgment
dismissing the case. The draft judgment was entitled a final judgment, granted the
motion to dismiss, and declared that it disposed of all parties and claims. On the
same day, the plaintiff amended his petition to remove the officer and add the City
as the defendant. On June 3, 2019, the trial court signed the police officer’s proposed
final judgment, which provided that it “disposes of all parties and claims and is final
and appealable.” The judgment does not mention the City.
Four months later, counsel for plaintiff requested deposition dates from the
City. The City refused to provide any depositions, asserting that the June 3 judgment
was a final judgment and the trial court’s plenary power had expired. The next day,
on October 10, 2019, the trial court issued a modified version of the June 3 judgment
(1) changing the title from “Final Judgment” to “Order” and (2) striking the sentence
providing that the order “disposes of all parties and claims and is finial and
appealable.” The original version of the June 3 judgment was removed from the
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district court’s website and the entry for that date was revised to indicate that an
interlocutory, partial dismissal was issued instead of a final judgment. Counsel for
plaintiff again sought deposition dates and the City again refused, asserting that the
trial court lacked plenary power to issue the modified order.
The City filed a mandamus petition requesting that we (1) compel the trial
court to withdraw its modified order and (2) compel the district court clerk to put the
June 3 judgment back in the case records and change the description for that date to
indicate that a final judgment was entered. Our court requested that real party in
interest file a response to the petition but a response was not filed.
Standard of Review
To be entitled to mandamus relief, a relator must show both that the trial court
abused its discretion and that there is no adequate remedy by appeal. In re Prudential
Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004). When an order is void, “the relator
need not show it did 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).
Analysis
The City asserts that it is entitled to mandamus relief because (1) the June 3
judgment was a final judgment and (2) the trial court lacked plenary power to modify
the judgment and thus its modified order is void. We agree.
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The June 3, 2019 Order is a Final Judgment
In 2001, the Texas Supreme Court announced two tests to determine the
finality of orders issued before the conclusion of a trial. Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 200–206 (Tex. 2001). First, an order can be final if it includes a
finality phrase, such as, “This judgment finally disposes of all parties and claims and
is appealable.” Id. at 206. Second, an order can be final if its effect is to dispose of
all claims and parties before the trial court. Id. at 205. As discussed below, the June
3 judgment satisfies the first test for finality because it includes finality language
stating, “This order disposes of all parties and claims and is final and appealable.”
In Lehmann v. Har-Con Corp., the Supreme Court of Texas explained that “if
the language of the order is clear and unequivocal, it must be given effect despite
any other indications that one or more parties did not intend for the judgment to be
final.” Id. at 206. “[T]he language of an order or judgment can make it final, even
though it should have been interlocutory, if that language expressly disposes of all
claims and all parties.” Id. at 200. The Supreme Court gave an example of clear and
unequivocal language that would leave no doubt that the trial court entered a final
judgment: “A statement like, ‘This judgment finally disposes of all parties and all
claims and is appealable’ would leave no doubt about the court’s intention.” Id. at
206.
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The June 3 judgment contains finality language similar to the example
provided in Lehmann. Although the June 3 judgment only referenced dismissal of
the officer and not the City, Lehmann holds that such finality language renders the
judgment final “even though it should have been interlocutory.” Id. at 200. The
Texas Supreme Court further explained this holding in In re Daredia, 317 S.W.3d
247 (Tex. 2010) (per curiam), a case similarly involving a judgment that included
finality language but did not mention another defendant.
In Daredia, American Express sued Daredia and Map Wireless. 317 S.W.3d
at 248. Daredia answered the lawsuit, but Map Wireless did not, and American
Express moved for default judgment against Map Wireless. Id. The trial court signed
the default judgment submitted by American Express, which concluded with two
sentences stating, “All relief not expressly granted herein is denied. This judgment
disposes of all parties and all claims in this cause of action and is therefore FINAL.”
Id. More than fifteen months later, American Express moved for judgment nunc pro
tunc to correct “typographical errors” in the judgment regarding its finality so that
the case could proceed against Daredia. Id. Daredia responded that the judgment was
final and the trial court had lost plenary power thirty days after the judgment was
signed. The Supreme Court agreed and granted Daredia’s petition for writ of
mandamus. Id. The Supreme Court explained that the finality language rendered the
judgment final and “holding that the failure to mention Daredia creates an ambiguity
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that makes the judgment interlocutory is contradicted by Lehmann.” Id. at 249. The
Supreme Court further explained:
[T]he lack of any basis for rendering judgment against Daredia did not
preclude dismissing him from the case. Even if dismissal was
inadvertent, as American Express insists, it was nonetheless
unequivocal, and therefore effective. American Express complains that
the trial court never made a substantive disposition of its claims against
Daredia, but dismissal is not a ruling on the merits. We conclude that
the judgment by its clear terms disposed of all claims and parties and
was therefore final.
Id. The Supreme Court concluded “that the trial court clearly abused its discretion
in setting aside a judgment after its plenary power expired. Daredia has no adequate
remedy at law.” Id. at 250.
Consistent with Lehmann and Daredia, we conclude that the June 3, 2019
order was a final judgment. See S. Mgmt. Servs., Inc. v. SM Energy Co., 398 S.W.3d
350, 357-58 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (order granting motion
for summary judgment, even though it did not expressly dispose of claims against
third-party defendant, was a final judgment because it stated, “This judgment is final,
disposes of all parties, and is appealable.”); Morris v. Deutsche Bank Nat’l Tr. Co.,
528 S.W.3d 187, 193 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (order
partially granting summary judgment as to some claims but not others was
nevertheless final judgment under Lehmann and Daredia because order stated, “This
order disposes of all parties and all claims in this action and constitutes a final
judgment for all purposes including appeal”).
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Modifications to the Order Were Made After Plenary Power Expired
Because the June 3, 2019 order was a final judgment, the trial court had
plenary power to grant a new trial or modify the judgment within thirty days after
signing the judgment. See TEX. R. CIV. P. 329b(d), (f). Plaintiff did not file any post-
judgment motion that would have extended the trial court’s plenary power beyond
thirty days. See TEX. R. CIV. P. 329b(a). The trial court lost plenary power over the
case thirty days after the final judgment was signed. TEX. R. CIV. P. 329b(f); see also
In re Elizondo, 544 S.W.3d 824, 829 (Tex. 2019) (holding trial court “must correct
judicial errors within thirty days of judgment or not at all”); In re Daredia, 317
S.W.3d at 248 (concluding once judgment is final and court loses plenary power,
court has no authority to act in lawsuit); Jefferson v. Pirtle, No. 14-17-00817-CV,
2018 WL 6494244, at *1 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (mem.
op.) (“The parties did not file a post-trial motion that had the effect of extending
appellate deadlines. Thus, the trial court lost plenary power on June 8, 2016, thirty
days after signing the final judgment.”). Accordingly, the trial court lacked plenary
power to modify the judgment or reinstate the case after its plenary power expired.
The Texas Supreme Court’s decision in Elizondo addressed a similar attempt
to modify a judgment more than 30 days after the judgment was signed to remove
an erroneous inclusion of finality language. In Elizondo, the plaintiffs sued the
defendants over a cost dispute on building the plaintiffs’ home. 544 S.W.3d at 825.
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Early in the case, the trial court signed a temporary injunction preventing the
defendants from selling certain property based on the presence of a lien. Id. The
defendants filed a motion to remove the lien and submitted a draft order granting
their motion. Id. Although the order would not have otherwise disposed of the
plaintiffs’ claims, the order included a finality phrase stating: “This judgment is
final, disposes of all claims and all parties, and is appealable. All relief not granted
herein is denied.” Id. The trial court signed the order, and no party took corrective
action in the 30 days of the trial court’s remaining plenary power. Id.
Several weeks after plenary power lapsed in Elizondo, the plaintiffs noticed
the error and requested a corrected order. Id. The trial court issued an amended order,
“this time omitting the finality phrase.” Id. Our court granted the defendants’ request
for mandamus relief challenging the trial court’s authority to amend the order and
directed the trial court to vacate the amended order. Id. Plaintiffs then filed a
mandamus petition with the Texas Supreme Court challenging our opinion. Id. at
825–26. The Court denied the petition, agreeing with our granting of mandamus
relief. Id. at 829. In its decision, the Court re-affirmed its holding in Lehmann that,
when an order contains finality language, the language is controlling and the order
is a final judgment, even if the finality is erroneous. Id. at 827–28. The Court
explained:
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[Plaintiffs] had thirty days to examine the one-page order and notice
that it included a finality phrase. Even if [they] disagreed that the order
was final, [they] should have treated it as though it was. Had [they]
examined the order within the thirty-day window, [they] could
have sought an amended order or pursued an appeal. Since [plaintiffs]
waited more than thirty days to contend that the order improperly
disposed of [their] other claims, [they have] lost them. Though jarring
for [plaintiffs], this outcome reflects Lehmann’s reasoning and
comports with this Court’s subsequent application of Lehmann’s
finality tests.
Id. at 827 (citing Lehmann, 39 S.W.3d at 196).
The Court in Elizondo rejected the plaintiffs’ arguments that, when an order
contains finality language, a court can look at the rest of the record to determine
whether the order actually is final. See id. at 827–28 (holding that “a reviewing court
confronting an order that includes a finality phrase cannot look at the record” and
“must take the order at face value.”). It also rejected the argument that removing
finality language can be construed as correcting a clerical error. Id. at 829. (“The
trial court’s inclusion of the finality phrase in the original order constituted judicial
error.”).
The Texas Supreme Court recently reiterated its holding that reviewing courts
cannot consider the record to determine finality when an order provides a clear and
unequivocal statement of finality:
[Appellant] argues that the court of appeals should not have analyzed
the record for evidence of finality after the trial court provided a clear
and unequivocal statement that it had intended the appealed-from order
to be a final judgment. We agree. We have previously held that a
judgment is final either if “it actually disposes of every pending claim
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and party” or “it clearly and unequivocally states that it finally disposes
of all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d
191, 205 (Tex. 2001). The court of appeals mistakenly read Lehmann to
require record evidence of finality and an unequivocal expression of
finality. Young, 566 S.W.3d at 833. But this approach “would
distill Lehmann’s joint tests into a simple rule: when there has not been
a conventional trial on the merits, a court must look to the record to
determine whether the judgment is final. That is not Lehmann’s
rule.” In re Elizondo, 544 S.W.3d 824, 828 (Tex. 2018) (per curiam).
Instead, a clear and unequivocal statement of finality must be “given
effect” even if review of the record would undermine finality.
Lehmann, 39 S.W.3d at 206.
Bella Palma, LLC v. Young, No. 19-0204, 2020 WL 1898543, at *2 (Tex. Apr. 17,
2020) (per curiam) (emphasis in original).
As in Elizondo, the trial court in this case lacked plenary power to issue its
modified order correcting its final judgment more than thirty days after the judgment
was signed. Accordingly, the modified judgment is void and the City need not
demonstrate that it lacks an adequate remedy by appeal to be entitled to mandamus
relief. See In re Sw. Bell Tel. Co., 35 S.W.3d at 605; see also In re Elizondo, 544
S.W.3d 829, In re Daredia, 317 S.W.3d at 250.
Conclusion
For the foregoing reasons, we conclude that the trial court abused its discretion
by modifying its final order. We conditionally grant the petition for writ of
mandamus and direct the trial court to (1) vacate its modification order and (2)
reinstate its June 3, 2019 judgment. We are confident that the trial court will
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promptly comply, and our writ will issue only if it does not. We dismiss any pending
motions as moot.
Gordon Goodman
Justice
Panel consists of Chief Justice Radack and Justices Kelly and Goodman.
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