Opinion
No. 05-06-01281-CV.
Opinion Issued January 2, 2007.
Original Proceeding from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. 01-02265-E.
Before Justices WRIGHT, O'NEILL, and LANG.
MEMORANDUM OPINION
In this case, the trial court determined it had lost plenary jurisdiction and declined to rule on relators' motion and supplemental motion to set aside default judgments. Stating that there is no final judgment in this case, relators contend the trial court has abused its discretion in failing to rule on their motion to set aside judgment. Our review of the record reveals that there is no final judgment in this case and plenary jurisdiction remains with the trial court. Accordingly, we conditionally grant writ of mandamus to instruct the trial court to consider the motion and supplemental motion to set aside the default judgments.
The record before the Court indicates that real party in interest Ronald Rakestraw brought suit against defendants Jason Scott Metcalfe, GDS Freight, Anthony A. Hoffman and Henry Castro d/b/a A H, and Joseph Greene. There is no indication in the record that defendant Anthony A. Hoffman was ever served and he did not file an answer. There is no proof of service in the record for defendant Metcalfe, but he did file a pro se answer. Defendant Henry Castro was served by substituted service, but did not file an answer. Defendants GDS Freight and Joseph Greene were served and filed answers.
The record contains an August 29, 2003 default judgment against "Defendant, Henry Castro d/b/a A H" and a May 3, 2004 "Final Judgment." The May 3, 2004 "Final Judgment" is a default judgment against defendant Jason Scott Metcalfe and incorporates the earlier default judgment against defendant Henry Castro d/b/a A H into its finding of negligence and awards for interest, damages and costs. Defendants Anthony A. Hoffman, GDS Freight and Joseph Greene are not mentioned in this "final" judgment. The May 3, 2004 judgment provides that the plaintiff is "entitled to enforce this judgment through abstract, execution and any other process necessary," and ends with the sentence, "[a]ll other requested relief is hereby denied."
Although a judgment following a trial on the merits is presumed to be final, there is no such presumption of finality following a summary judgment or a default judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005). While a clause stating that "all other relief not expressly granted is hereby denied" indicates that a post-trial judgment is final, it does not establish finality with regard to a default judgment. Id. at 829-30 (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-04). Likewise, language permitting execution does not unequivocally express finality in the absence of a judgment that actually disposes of all parties and all claims. Id. at 830. To determine whether an order disposes of all pending claims and parties, it may be necessary for the appellate court to look to the record in the case. Lehmann, 39 S.W.3d at 205-06.
We have reviewed the record and we have determined there is no finality of judgment in this case because there is no order or judgment that disposes of the claims against defendants GDS Freight and Joseph Greene and there is no severance order as to these defendants. The judge's docket reflects that a settlement between GDS Freight and plaintiff Rakestraw was read into the record and that Joseph Greene was non-suited. The docket entries concerning these two parties do not constitute a written order. Burlington Coat, 167 S.W.3d at 831 (citing Hamilton v. Empire Gas Fuel Co., 134 Tex. 377, 110 S.W. 2d 561, 566 (1937) (holding that "[j]udgments and orders of courts of record to be effectual must be entered of record," and concluding that "[n]either entries in the judge's docket nor affidavits can be accepted as substitute for such record")). Although the reporter's record of the settlement hearing between GDS Freight and Rakestraw indicates that GDS Freight offered the amount of $40,000 "to fully and completely resolve any and all claims that Mr. Rakestraw has against GDS Freight," there is no written order or judgment specifying whether the defendant GDS Freight is to be non-suited, whether the claims against it are to be dismissed with prejudice, or whether judgment shall be rendered for the settlement amount.
Without an order or judgment in the record that disposes of the claims against defendants Joseph Green and GDS Freight, the May 3, 2004 judgment is not a final judgment because it does not dispose of all the claims and defendants. See Lehmann at 39 S.W.3d at 200. Because the May 3, 2004 judgment is an interlocutory judgment, the trial court has not lost its plenary jurisdiction and it abused its discretion in not considering relators's motion and supplemental motion to set aside default judgments.
Mandamus issues only when the trial court clearly abuses its discretion and there is no adequate remedy at law. In re CI Host, Inc. 92 S.W.3d 514, 516 (Tex. 2002) (orig.proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Mandamus will not issue where there is a clear and adequate remedy at law, such as a normal appeal. Walker, 827 S.W.2d.at 840. In this case, an appellate remedy is not available to the relators because the May 3, 2005 judgment is not final and it is not an appealable interlocutory judgment. Additionally, without a final judgment, the equitable remedy of a bill of review is not available to the relators. See State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex. 1989); Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950).
Accordingly, we conditionally grant the relators' petition for writ of mandamus. A writ will issue only in the event respondent fails to consider relators' motion and supplemental motion to set aside default judgments.