Opinion
No. 04-04-00751-CV
Delivered and Filed: February 9, 2005.
This proceeding arises out of Cause No. 2003-CI-12280, styled John Adrian Anthony v. The Lynd Company, filed in the 408th Judicial District Court, Bexar County, Texas, the Honorable John D. Gabriel presiding. The Honorable Rebecca Simmons is the permanent judge of the 408th District Court, but Judge Gabriel presided over the hearings and signed the orders at issue in this original proceeding.
Petition for Writ of Mandamus Conditionally Granted
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
On October 21, 2004, relator filed a petition for writ of mandamus, asking this court to order the trial court to vacate its order granting the real party in interest's motion for new trial on the grounds that the order is void.
BACKGROUND
On August 11, 2003, relator, John Adrian Anthony, sued the real party in interest, The Lynd Company, for injuries he allegedly suffered due to a premises defect. On September 3, 2003, Anthony served The Lynd Company with Plaintiff's Original Petition and Requests for Disclosure. At some point in time, an individual, by the name of Mack Ausburn, filed a pro se answer on behalf of The Lynd Company. On November 6, 2003, Anthony filed a Motion for Sanctions against The Lynd Company based on its failure to respond to the requests for disclosure. On November 21, 2003, the trial court signed an order entitled "Order on Motion for Sanctions."
On April 7, 2004, Anthony filed Plaintiff's Motion for Entry of Final Default Judgment. On May 18, 2004, the trial court held a hearing on the motion and signed a judgment entitled "Final Default Judgment." On July 20, 2004, a Writ of Execution issued. On August 4, 2004, a sheriff's deputy appeared at The Lynd Company offices threatening to seize sufficient assets to satisfy the judgment.
Asserting it had no knowledge of the judgment until the appearance of the sheriff's deputy at its offices, The Lynd Company filed a Motion to Set Aside Post-Answer Default Judgment and Motion for New Trial on August 27, 2004. The trial court granted the motion on September 7, 2004. Anthony seeks mandamus relief from this order.
WHICH JUDGMENT IS FINAL?
Anthony first argues that the November 21st Order on Motion for Sanctions, rather than the subsequent May 18th default judgment, is the final judgment, and the trial court signed the September 7th order granting a new trial after its plenary power expired. Therefore, Anthony concludes, the September 7th order granting a new trial is void.
The validity of the court's September 7th order granting a new trial depends upon whether the November 21st Order on Motion for Sanctions can be considered a final judgment that triggered the appellate deadlines and the expiration of the trial court's plenary power. See In re Vlasak, 141 S.W.3d 233, 235 (Tex.App.-San Antonio 2004, orig. proceeding). If the November 21st Order on Motion for Sanctions was final, and not interlocutory, then the September 7th order granting a new trial was signed outside the trial court's plenary jurisdiction and is void. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding).
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). Whether a judicial decree is a final judgment must be determined from its language and the record in the case. Id. A default judgment carries no presumption of finality, and we must divine the intention of the trial court from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties. Zamarripa v. Sifuentes, 929 S.W.2d 655, 657 (Tex.App.-San Antonio 1996, no writ).
In his motion for sanctions, Anthony requested "a judgment by default" pursuant to Texas Rule of Civil Procedure 215.2(b)(5). Rule 215.2(b)(5) provides that a trial court may strike pleadings, dismiss the action or render a judgment by default against a party who fails to comply with proper discovery requests. Here, the November 21st Order on Motion for Sanctions states, in pertinent part, as follows:
. . . The defendant, The Lynd Company, despite the fact it was properly served with notice of hearing on Plaintiff's Motion for Sanctions, failed to appear for said hearing. It appearing to the Court that a proper Request for Disclosure per Tex. R. Civ. P. 194 has been timely and properly served on Defendant and that Defendant has wholly failed and refused to respond to said Request, without legal justification, the Court finds that a Default Judgment on Plaintiff's liquidated claim against Defendant, The Lynd Company is an appropriate discovery sanction.
It is therefore ORDERED, ADJUDGED AND DECREED that [Anthony], be and he is hereby awarded Judgment against . . . The Lynd Company, in the amount of Seventy-five Thousand and 00/100 Dollars ($75,000.00) plus reasonable and necessary attorney's fees in the amount of Five Thousand and 00/100 Dollars ($5,000.00), with interest thereon at the rate of five percent (5%) per annum from the date of rendition of this Judgment until paid.
It is further ORDERED, ADJUDGED AND DECREED that all costs incurred be and they are hereby adjudged against the . . . The Lynd Company, for all of which let execution issue if not timely paid.
The Order on Motion for Sanctions does not contain a mother hubbard clause. However, to determine whether the Order on Motion for Sanctions disposes of all pending claims and parties, it is necessary to look to the record in the case. See Lehmann, 39 S.W.3d at 205-06. In Lehmann, the Supreme Court held that a review of the record may help determine whether a judgment disposes of all parties and claims and is therefore final, even though it should have been interlocutory because no sufficient basis for rendering a final judgment was presented. Id. at 205-06. A review of the record may also reveal that an order should not be regarded as final despite language in the order that might indicate otherwise. Id. at 206.
Anthony sued The Lynd Company for injuries sustained due to an alleged premises defect.
The November 21st Order on Motion for Sanctions did not award Anthony unliquidated damages, and Anthony did not offer any evidence in support of his unliquidated damages. Instead, he filed a motion for entry of final default judgment on April 7, 2004. At the May 18th hearing on the motion, Anthony's counsel stated he was presenting evidence in support of the unliquidated damages awarded in the November 21st Order on Motion for Sanctions, and Anthony presented evidence of his physical injuries and offered into evidence his medical records and bills. The May 18th default judgment resulted in an increase in damages from $75,000 to $100,000. Anthony did not request a writ of execution after the November 21st Order on Motion for Sanctions; instead, he requested, on June 19, 2004, that the May 18th default judgment be abstracted. The clerk of the court did not treat the November 21st Order on Motion for Sanctions as final by sending notice of the order. However, the clerk sent notice of the May 18th default judgment.
We conclude there is no indication in the language of the November 21st Order on Motion for Sanctions or in the record as a whole that the trial court intended to render a final judgment on November 21st. Therefore, the May 18th default judgment was the final judgment disposing of all claims and parties.
WHETHER THE SEPTEMBER 7TH ORDER IS VOID
Anthony next asserts that even if the May 18th default judgment is the final judgment, the trial court's September 7th order granting the new trial is void because the trial court had lost its plenary power to render such an order.
If a party plans to file a motion for new trial, it must do so, as a general rule, no later than thirty days after the date the final judgment was signed. Tex. R. Civ. P. 329b(a). But the Texas Rules of Civil Procedure provide an exception to this general rule if a party adversely affected by a judgment or its attorney either receives the clerk's notice that a judgment has been rendered or acquires actual knowledge of the signing of the judgment more than twenty days after the date the judgment was signed. See Tex. R. Civ. P. 306a(3)-(4); see also Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (per curiam) (exception does not apply if notice received or actual knowledge acquired more than ninety days after date judgment was signed). Rule 306a(4) provides as follows:
If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.
Rule 306a(4) is not, however, self-implementing. In re Jones, 974 S.W.2d 766, 768 (Tex.App.-San Antonio 1998, orig. proceeding). Rather, "to establish the application of paragraph (4)," the adversely affected party must file a sworn motion setting forth "the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed." Tex. R. Civ. P. 306a(5). The party must establish this date in the trial court by competent evidence and ensure the proof is included in a written order. Jones, 974 S.W.2d at 768. "Finally, the party must obtain from the trial court a signed order that includes a finding of this date." In re Parast, No. 04-03-00340-CV, 2003 WL 21537423, * 2 (Tex.App.-San Antonio July 9, 2003, orig. proceeding); see also Jones, 974 S.W.2d at 768; see also Tex.R.App.P. 4.2(c). If Rule 306a(4)'s applicability is not established in the manner required by the rule, the trial court's plenary power is not invoked and the trial court does not have jurisdiction to grant a motion for new trial filed more than thirty days after the date the judgment was signed. Jones, 974 S.W.2d at 768.
Because we have determined the May 18th default judgment was the final judgment in this case, The Lynd Company was required to file a motion for new trial no later than June 17, 2004. See Tex. R. Civ. P. 329b(a). The Lynd Company filed its motion on August 27, 2004. Consequently, the trial court was without jurisdiction to grant a new trial unless jurisdiction was established pursuant to Rule 306a(4)-(5). Parast, 2003 WL 21537423, at *3.
At the hearing on The Lynd Company's motion to set aside the default judgment and for new trial, The Lynd Company offered evidence demonstrating it did not have actual knowledge until August 4th. However, the trial court's order granting the new trial does not include a finding of the date on which The Lynd Company or its attorney first either received notice or acquired actual knowledge that the May 18th default judgment was signed. Because The Lynd Company failed to establish the date required by Rule 306a(5), it failed to invoke the trial court's jurisdiction. See Jones, 974 S.W.2d at 769. Therefore, the order granting a new trial is void.
CONCLUSION
Mandamus is appropriate to set aside an order for new trial that is granted after the trial court's plenary power expires. In re Dickason, 987 S.W.2d at 571. Because the trial court's order granting The Lynd Company a new trial was signed after its plenary power expired, it must be set aside. Accordingly, Anthony's petition for a writ of mandamus is conditionally granted. The Honorable John D. Gabriel is ORDERED to withdraw his September 7, 2004 order granting a new trial in Cause No. 2003-CI-12280 styled John Adrian Anthony v. The Lynd Company, in the 408th Judicial District Court, Bexar County, Texas. If he does not do so within ten days of this opinion, we will issue the writ.