Opinion
05-23-00983-CV
02-06-2024
IN THE INTEREST OF C.K.M., A CHILD
On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 91555
Before Justices Molberg, Pedersen, III, and Nowell
MEMORANDUM OPINION
KEN MOLBERG, JUSTICE
By this appeal, the Texas Department of Family and Protective Services seeks to challenge the trial court's September 29, 2023 order sanctioning, on Mother's and Father's motions, the Department for filing a frivolous pleading. The pleading was filed in a suit the Department filed initially seeking temporary orders requiring Mother and Father to participate in services for the safety of C.K.M. and subsequently seeking the termination of Mother's and Father's rights to C.K.M. See Tex. Fam. Code §§ 161.001 (providing for involuntary termination of parent-child relationship), 264.203 (authorizing suit for temporary services for child's safety). Because the order was signed outside the trial court's plenary power, we vacate the order as void and dismiss the appeal. See State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam).
The initial petition also sought the temporary services for the safety of C.K.M.'s siblings, but the subsequent petition did not seek the termination of Mother's and Father's rights as to the siblings.
The sanctions order was signed after the trial court signed an order that, in part, reads as follows:
2.1 The Court finds that the Temporary Orders for Required Participation in Services in this case is no longer needed.
2.2. THEREFORE, THE COURT HEREBY terminates the Temporary Order for Required Participation in Services.
2.3 IT IS THEREFORE ORDERED that [attorney ad litem] earlier appointed to represent the child is relieved of all duties based on a finding of good cause.
2.4 The Clerk of this Court is hereby directed to remove this cause from the Court's docket and send notice to all parties that this cause is hereby dismissed.
The trial court signed this order ("the dismissal order") on August 21, 2023, following the Department's nonsuit of its petition for temporary services and petition for termination. At the time the dismissal order was signed, the sanctions motions filed by Mother and Father were pending and were to be heard "later this month." Also pending were counterpetitions Mother and Father had each filed for the sole managing conservatorship of C.K.M.
Although the dismissal order did not specifically address the Department's termination petition or Mother's and Father's sanctions motions and conservatorship petitions, because the order dismissed "this cause" and directed the Clerk of Court to "remove this cause from the Court's docket," the order was final and triggered the running of the trial court's plenary power. See Tex. R. Civ. P. 329b(d) (trial court retains plenary power over cause for thirty days after final judgment or order is signed); In re Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021) (per curiam) (judgment rendered without conventional trial on merits is final if it actually disposes of every pending claim and party or "clearly and unequivocally" states it finally disposes of all claims and parties, even if it does not actually do so); Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.-Dallas 2009, no pet.) (op. on reh'g) (order dismissing "the case" for want of prosecution disposed, "on its face," of all parties and claims and was final, despite appellant's argument that the order was interlocutory because it did not dispose of all of her claims). No motion for new trial or to modify judgment was filed, and the trial court's plenary power expired September 20, 2023. See Tex. R. Civ. P. 329b(d).
In Brashear, we rejected appellant's argument, stating, "We cannot agree with this logic, whereby the finality of an order depends on its validity. 'Even void orders must be timely appealed.'" 302 S.W.3d at 546 (quoting Standifer v. Cepeda, No. 05-05-00725-CV, 2005 WL 2212291, at *1 (Tex. App.-Dallas Sept. 13, 2005, no pet.) (mem. op.) (other citations omitted)). The dissent appears to apply the same misguided logic we rejected in Brashear.
Because an order signed outside the trial court's plenary power is void, and an appellate court's jurisdiction over an appeal taken from a void order is limited to vacating the void order and dismissing the appeal, we informed the parties that we would vacate the sanctions order and dismiss the appeal unless the parties demonstrated the order was not void. See Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per curiam); Latty, 907 S.W.2d at 486. In letter briefs filed in response, Mother and Father agree the appeal should be dismissed but for a different reason: because their motions for sanctions and counterpetitions for sole managing conservatorship were pending at the time the dismissal order was signed, the judgment did not dispose of all claims and was not final.
The language of an order can make the order final, however, even though it should have been interlocutory. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). An order that expressly disposes of the entire case is not interlocutory merely because the record does not show a legal basis for the disposition. Id. at 206. When the language of the order is clear and unequivocal, it must be given effect despite any other indication that it was not intended to be final. Id.
By dismissing "this cause" and directing the Clerk of Court to "remove this cause from the Court's docket," the trial court expressly disposed of the entire case, and the order was final, triggering the running of the trial court's plenary power. And because no plenary-power-extending motion was filed, the trial court's plenary power expired September 20, 2023, and the sanctions order, signed nine days later, is void. Accordingly, we vacate the sanctions order and dismiss the appeal. See Latty, 907 S.W.2d at 486.
We reach this conclusion based on principles that both we and the dissent agree this Court is bound by, namely, that a final judgment is demonstrated by a "clear indication that the trial court intended the order to completely dispose of the entire case," Lehmann, 39 S.W.3d at 205, and that a clear and unequivocal statement of finality must be given effect even if review of the record would undermine finality. Id. at 206; see In re R.R.K., 590 S.W.3d 535, 544 (Tex. 2019) ("If a judicial decree's finality is ambiguous, a reviewing court should examine the record to determine the trial court's intent.").
But after recognizing these binding principles, the dissent then fails to apply them. The dissent does so by flipping the analysis on its head, focusing on alleged "contrary indicators" of finality in the record to determine whether the dismissal order is final, rather than beginning and ending with the clear and unequivocal statement of finality in the dismissal order, which dismissed "this cause" and directed the Clerk of Court to "remove this cause from the Court's docket." In this case, because the language of the dismissal order makes its finality unambiguous, there is no reason to examine the record to determine the trial court's intent.
According to the dissent, one such "contrary indicator" is the consolidation order signed August 22, 2023. But while the order was signed on that date, the trial court's ruling to consolidate was made August 10, 2023, according to the docket sheet, and according to the purported reporter's record, was reaffirmed on August 21, 2023-prior to the signing of the dismissal order. Thus, while we do not believe we may look beyond the dismissal order to determine its finality, considering its certainty regarding dismissal of the case and removal from the trial court's docket, even if we could look to the record, as the dissent does, we do not interpret the August 22, 2023 order as a "contrary indicator" to finality under the circumstances.
Pedersen, J., dissenting
JUDGMENT
Justices Pedersen, III and Nowell participating.
In accordance with this Court's opinion of this date, we VACATE the trial court's September 29, 2023 sanctions order and DISMISS the appeal.
It is ORDERED that each party bear its own costs of this appeal.
DISSENTING OPINION
BILL PEDERSEN, III JUSTICE
The majority finds, as a matter of law, that the trial court "clearly and unequivocally" intended to enter a final judgment when, in response to the Department's notice of non-suit, the trial court's "Order on Motion to Terminate Temporary Order for Required Participation in Services Pursuant to Texas Family Code § 264.203(t)" stated "this cause is hereby dismissed." I am not convinced that this order is clearly and unequivocally final on its face. But even if it could be read to be final, I believe any final aspects of the order were vacated when the trial court- while it had plenary power over this case-consolidated it with another pending case.
The Order Is Not Clearly and Unequivocally Final
On October 23, 2023, this Court sent a letter to counsel of record advising them that this Court would set aside the September 29, 2023 sanctions order (entered by the trial court following the rendition of the August 21, 2023 "Order on Motion to Terminate Temporary Order for Required Participation in Services Pursuant to Texas Family Code § 264.203(t)") and dismiss the appeal "unless, no later than November 2, 2023, a party files a letter brief demonstrating that the order is not void and the appeal should not be dismissed." This letter itself noted that the:
record reflects the underlying cause was dismissed August 21, 2023, following a hearing. The next day, the trial court consolidated cause number 90115 into the underlying cause, and on September 29, 2023, the trial court signed the appealed sanctions order.
The letter also suspended the deadline for filing the reporter's record. Counsel for the parents responded; the Department did not.
The Texas Supreme Court has said a judgment is final either if "it actually disposes of every pending claim and party" or if "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); see also Bella Palma, LLC v. Young, 601 S.W.3d. 799, 801 (Tex. 2020). 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. Intent to render a final judgment is demonstrated by a "clear indication that the trial court intended the order to completely dispose of the entire case." Id. at 205. "If the appellate court is uncertain about the intent of the order, it can abate the appeal to permit clarification by the trial court." Id. at 206. Although no "magic language" is required, a trial court may express its intent to render a final judgment by describing its action as (1) final, (2) a disposition of all claims and parties, and (3) appealable. In re R.R.K., 590 S.W.3d 535, 543 (Tex. 2019) (citing Lehmann, 39 S.W.3d at 206). I understand this test to mean that if a trial judge says, clearly and unequivocally, that she intends the judgment to be final, it is final for purposes of appellate review. Of course, the trial judge may be wrong, but the clear and unequivocal expression of the trial court's intentions provides an appellate court with jurisdiction to determine if the trial court is correct. If any doubt exists, Texas law allows two options: (1) abate the appeal and remand to permit clarification by the trial court, or (2) review of the record. See Lehmann, 39 S.W.3d at 206.
Texas jurisprudence contains many examples of statements that, standing alone, cannot satisfy the clear-and-unequivocal standard. On its own, merely stating that the order is "final" is not enough. Id. at 203-05; see also Patel v. Nations Renovations, LLC, 661 S.W.3d 151, 155 (Tex. 2023) (per curiam). Stating that the order is "appealable" is also not enough when standing alone. Lehmann, 39 S.W.3d at 203-05. Including a Mother Hubbard clause that "all relief not granted is denied" is not enough by itself. Id. at 203-04. To determine what are sufficient indicia of finality, the Texas Supreme Court opined that "there must be some other clear indication that the trial court intended the order to completely dispose of the entire case." Id. at 205. The question then becomes how this "clear indication" standard can be satisfied.
The majority acknowledges that the dismissal order was signed following the Department's voluntary nonsuit of its petition for temporary services and petition for termination, that the parents' motions for sanctions were pending and set to be heard at a later date, and that the parents had both filed counter-petitions.
Texas Rule of Civil Procedure 162, "Dismissal or Non-suits," states in relevant part: "Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief," and "A dismissal under this rule shall have no effect on any motion for sanctions, attorneys' fees or other costs, pending at the time of dismissal." Tex.R.Civ.P. 162.
The Order in question is entitled "Order on Motion to Terminate Temporary Order for Required Participation in Services Pursuant to Texas Family Code § 264.203(t)." The Texas Family Code provides that "the department may file a suit" requiring the parent, managing conservator, guardian, or other member of the child's household to participate in services, or to permit the child and any siblings to receive services. Tex. Fam. Code Ann. § 264.203(a)(1), (2). This section also provides that a court "shall terminate the order on finding the order is no longer needed." Id. § 264.203(t). No other entity or individual (for example the parents in this case) is authorized to seek affirmative relief under this Family Code provision; only "the department" may file such a suit. That is to say, if the title of the order has any meaning, then the parents' requested relief could not have been resolved, and the order is not a final judgment. The majority ignores this part of the order we are reviewing for finality.
In response to this Court's October 23, 2023 letter, commonly referred to as a "jurisdiction letter," counsel for the parents provided not only the response described in the majority's opinion, but also copies of what appears to be the reporter's record. Counsel, as an officer of the Court, and in direct response to this Court's request for "a letter brief demonstrating that the order is not void and the appeal should not be dismissed," provided what this Court apparently would have received in the normal course, absent our unilateral cancellation of its production. (It seems the record was produced despite our cancellation.) The putative reporter's record reflects a clear intention by the trial court not to dismiss the entire cause. However, the majority takes the position that, in light of paragraph 2.4 in the dismissal order, no doubt exists as to the trial court's clear and unequivocal intention to dispose finally of all claims of all parties.
The "Order on Motion to Terminate Temporary Order for Required Participation in Services Pursuant to Texas Family Code § 264.203(t)" does not state it is final. See In re R.R.K., 590 S.W.3d at 543 (citing Lehmann, 39 S.W.3d at 206). It does not explicitly dispose of "all claims and parties." Id. It does not state that it is appealable. Id. The order did not follow a conventional trial on the merits. In my view, it neither "actually disposes of every pending claim and party" nor "clearly and unequivocally states that it finally disposes of all claims and all parties."
The trial court could have reasonably assumed that this Court would at least consider the title of the order in our analysis. The trial court could also have reasonably assumed that-given the procedural posture and timing of the Department's motion, i.e., in direct response to the parents' motion for sanctions- the plain language of Rule 162 concerning pending claims for affirmative relief and motions for sanctions would be given force and effect.
The "Order on Motion to Terminate Temporary Order for Required Participation in Services Pursuant to Texas Family Code § 264.203(t)" signed August 23, 2023, does not, in my view, clearly and unequivocally indicate that the trial court intended to completely dispose of the entire case; instead, it indicates only that the trial court intended to resolve the Department's affirmative claims. Perhaps I am wrong, and the trial court did intend, notwithstanding contrary indicators, to resolve all claims of all parties and to dismiss the entire case. If that is so, the trial court may simply say so. If not, however, what does it cost us to be sure?
Of course, we aren't at all uncertain; we know the trial court intended no such thing.
A Final Order Could Not Survive Consolidation
Even if the "Order on Motion to Terminate Temporary Order for Required Participation in Services Pursuant to Texas Family Code § 264.203(t)" could be read as the majority reads it, I believe any final aspects of the order were undone, or vacated, when the trial court consolidated this case with another pending case the following day.
When actions that involve a common question of law or fact are pending before the court, it may order those actions consolidated. Tex.R.Civ.P. 174(a). A plaintiff's suit does not end with rendition of a final order or judgment. Instead, the suit remains pending in the court until all issues have been determined, final judgment has been rendered, and all post-judgment motions have been disposed of. Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995); In re Guthrie, 45 S.W.3d 719, 728 (Tex. App.-Dallas 2001, pet. denied). Accordingly, this suit remained pending in the trial court the day after the "Order on Motion to Terminate Temporary Order for Required Participation in Services Pursuant to Texas Family Code § 264.203(t)" was signed, and the suit was subject to consolidation. See Tex. R. Civ. P. 174(a).
Likewise, on the following day, the trial court retained plenary power over the case with the power to change any ruling it had previously made. See Tex. R. Civ. P. 329b(d). Therefore, if the trial court had intended the "Order on Motion to Terminate Temporary Order for Required Participation in Services Pursuant to Texas Family Code § 264.203(t)" to be final, it retained the power "to vacate, modify, correct, or reform" that order to allow the parties and their issues to continue to resolution. See id.; see also Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). And if-as the record indicates-the trial court never intended the "Order on Motion to Terminate Temporary Order for Required Participation in Services Pursuant to Texas Family Code § 264.203(t)" to be final, it retained the power to vacate any final aspect of that order by signing another order that indicated it intended the suit to continue in the trial court. If indeed the trial court could unintentionally make its order final by using language of finality in an otherwise interlocutory order, it could also unintentionally revive the case by consolidating it with another case so that the parties and issues in the merged cases- including the parents' claims and sanctions motion in this case-could proceed thereafter as one suit. See Dillon ex rel. Estate of Culpepper v. King, No. 05-20-00215-CV, 2022 WL 1401403, at *6 (Tex. App.-Dallas May 4, 2022, no pet.) (mem. op.); see also Amir-Sharif v. Cadieux, No. 05-14-01055-CV, 2015 WL 1346154, at *1 (Tex. App.-Dallas Mar. 25, 2015, no pet.) (mem. op.). "After consolidation all issues of law and fact are merged." Amir-Shariff, 2015 WL 1346154, at *1.
The trial court ordered suits to be consolidated while it had plenary power to do so. I would conclude that action revived the suit in the trial court if it had indeed -for a period of one day-been rendered final.
Conclusion
The Supreme Court of Texas "has never wavered from the principle that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal." Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). Based on this record, we should do more to try to reach the merits of this appeal. See In re A.C.T.M., No. 23-0589, 2023 WL 9007803, at *4 (Tex. Dec. 29, 2023) (per curiam). Initially, I would either (1) abate and remand this case so the trial court can clarify whether the August 21, 2023 order was intended to be final, or (2) review the record. Alternatively, I would conclude that the trial court's consolidation of this suit with another pending case served to vacate any final aspects of that order, confirming its interlocutory status. Because the majority does not, I respectfully dissent.