Petition for Writ of Mandamus =
Conditionally=20
Granted and Memorandum Opinion filed December 20,=20
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00869-CV
____________
IN RE LONE STAR =
RV SALES,=20
INC., Relator
ORIGINAL=20
PROCEEDING
WRIT OF=20
MANDAMUS
M E M O R=20
A N D U M O P I N I O N
In this original =
proceeding, relator, Lone Star RV Sales, Inc., seeks a writ of =
mandamus=20
ordering respondent, the Hon. Marc W. Holder, to vacate the docket =
control=20
order because it was entered more than 30 days after respondent =
had=20
entered final judgment when no post-judgment motion was filed and =
no=20
appeal was taken. We conditionally grant the=20
writ.
Real parties in =
interest, James=20
and Faye Knape, purchased a travel trailer from Lone Star. =
The=20
Knapes sued Lone Star for various defects in the trailer and the =
failure=20
to repair such defects. Lone Star brought a third-party =
complaint=20
against the manufacturer, Fleetwood Travel Trailers of Texas, =
Inc.,=20
asserting a claim for indemnification. On April 27, 2007, =
the trial=20
court entered a judgment, and, on June 4, 2007, it entered a =
docket=20
control order, setting the case for trial on October 22, 2007. =20
In order to obtain =
mandamus=20
relief, the relator must show that the trial court clearly abused =
its=20
discretion and the relator has no adequate remedy by appeal. =
In=20
re Sw. Bell Tele Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) =
(orig.=20
proceeding). The trial court abuses its discretion if it =
reaches a=20
decision so arbitrary and unreasonable as to constitute a clear =
and=20
prejudicial error of law. Walker v. Packer, 827 =
S.W.2d 833,=20
839 (Tex. 1992) (orig. proceeding). Mandamus is appropriate =
where an=20
order is void because the trial court did not have plenary power =
to enter=20
such order. See In re Dickason, 987 S.W.2d 570, 571 =
(Tex.=20
1998) (orig. proceeding) (AMandamus is =
appropriate to set=20
aside an order for new trial that is granted after the court's =
plenary=20
power expires and that is, therefore, void.@).
The judgment states =
the Knapes=20
and Fleetwood appeared through their counsel of record and =
A[a]s shown by the =
signatures=20
below, the parties stipulate and agree, and the Court finds that=20
Third-Party Defendant is not liable to the Plaintiffs[, and] . . . =
Plaintiffs take nothing from Third-Party Defendant Fleetwood =
Travel=20
Trailers of Texas, Inc. on all their claims and causes of action =
alleged=20
in the above-captained matter.@ The judgment =
was=20
approved and entry was requested by counsel for the Knapes and =
counsel for=20
Fleetwood. However, the last sentence of the judgment =
states: =20
AThis judgment is a =
final=20
judgment as to all parties and all claims alleged in the=20
above-styled and numbered cause.@
Lone Star contends =
the judgment=20
is a final judgment and applies to all the Knapes=3D claims against =
it. The=20
Knapes contend the judgment is not final because it is based on a=20
settlement agreement to which only they and Fleetwood are =
parties. =20
When there has not =
been a=20
conventional trial on the merits, an order or judgment is not =
final for=20
purposes of appeal unless it either disposes of every pending =
claim and=20
party or unless it clearly and equivocally states that it finally =
disposes=20
of all claims and all parties. Lehmann v. Har-Con =
Corp., 39=20
S.W.3d 191, 205 (Tex. 2001). If the language of the =
order is=20
clear and unequivocal, it must be given effect despite any other=20
indications that one or more parties did not intend for the =
judgment to be=20
final. Id. at 206. An express adjudication of =
all=20
parties and claims in a case is not interlocutory merely because =
the=20
record does not afford a legal basis for the adjudication. =20
Id.
To determine whether =
an order=20
disposes of all pending claims and parties, it may be necessary =
for the=20
appellate court to look to the record in the case. =
Id. at=20
205B06. However, =
because we=20
find no vagueness in the judgment itself, we need not consider the =
record. Here, the judgment=3Ds clear and =
unequivocal=20
language disposes of all of the Knapes=3D claims against all=20
parties.
A trial court retains =
jurisdiction over a case for a minimum of thirty days, during =
which time=20
the trial court has plenary power to change its judgment. =
Tex. R. Civ. P. 329b(d); =
Lane=20
Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 =
(Tex.=20
2000). Certain post‑judgment motions, if filed within =
this initial=20
thirty day period, extend the trial court=3Ds plenary =
jurisdiction over its=20
judgment for up to an additional seventy‑five days. =
Tex. R. Civ. P. 329b(c), =
(e) &=20
(g); Dickason, 987 S.W.2d at 571. =
The Knapes did not =
request the=20
trial court to modify the judgment to reflect that only their =
claims=20
against Fleetwood be dismissed. Once thirty days passed =
since=20
respondent had signed the judgment, he had no power to set the=20
Knapes=3D claims against Lone =
Star for=20
trial, and any trial from that point on would be a nullity. =
See=20
Dickason, 987 S.W.2d at 571 (holding the trial court had no =
power to=20
grant the new trial and, therefore, any subsequent retrial would =
be a=20
nullity). In light of the final judgment, respondent abused =
his=20
discretion in entering the docket control order. Moreover, =
because=20
the docket control order is void, Lone Star need not show that it =
does not=20
have an adequate appellate remedy. In re Sw. Bell Tele. =
Co.,=20
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).
Accordingly, we =
conditionally=20
grant the petition for a writ of mandamus directing the trial =
court to=20
vacate its docket control order. The writ will issue only if =
the=20
trial court fails to act in accordance with this opinion. =20
Moreover, the Knapes =
filed a=20
motion to dismiss for lack of jurisdiction, in which they asserted =
we do=20
not have jurisdiction over an interlocutory appeal. Because =
this is=20
an original proceeding, not an interlocutory appeal, we deny the=20
Knapes=3D motion to dismiss as =
moot.
PER CURIAM
Petition Conditionally Granted and =
Memorandum=20
Opinion filed December 20, 2007.
Panel consists of Chief Justice Hedges =
and=20
Justices Anderson and Seymore.
Although Lone Star filed =
its=20
petition for writ of mandamus on October 18, 2007, it did not =
request that=20
we stay the trial court proceedings. =20
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