In re Gary Brye and William Sala--Appeal from 155th District Court of Austin County

Petition for Writ of Mandamus Conditionally Granted; Appeal Dismissed; and Memorandum Opinion filed October 11, 2007

Petition for Writ of Mandamus Conditionally Granted; Appeal Dismissed; and Memorandum Opinion filed October 11, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00660CV

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GARY BRYE AND WILLIAM SALA, Appellants

V.

LISA JANISH AND ELIZABETH WARMAN, Appellees

On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 2006V-0080

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NO. 14-07-00665-CV

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IN RE GARY BRYE AND WILLIAM SALA , Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

This appeal is from a judgment signed May 24, 2007. The trial court granted summary judgment in favor of defendants, Gary Brye and William Sala, dismissed plaintiffs Lisa Janish=s and Elizabeth Warman=s claims with prejudice, and ordered plaintiffs take nothing. The record reflects that on July 10, 2007, the trial court signed an order withdrawing and rescinding that order. Subsequently, on July 30, 2007, the trial court signed an order denying Defendants= Motion for Summary Judgment. On July 31, defendants filed a notice of appeal (No. 14-07-00660-CV).

On August 3, 2007, defendants filed a petition for writ of mandamus. The petition was originally filed in the First Court of Appeals. It was transferred to the Fourteenth Court of Appeals and filed in this court on August 13, 2007 (No. 14-07-00665-CV). On August 16, 2007, we ordered the appeal consolidated with the mandamus. In the original proceeding, defendants seek a writ of mandamus ordering the respondent, the Honorable Dan R. Beck, to vacate his orders of July 10, 2007, and July 30, 2007. We conditionally grant the writ.

In accordance with Rule 329b, the trial court had plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment for thirty days after the judgment was signed. See Tex. R. Civ. P. 329b(d). Plaintiffs claim the trial court withdrew its order of May 24, 2007, granting summary judgment on June 18, 2007, a date within thirty days of the judgment. Plaintiffs rely upon a docket sheet entry stating ACourt order signed 5-24-07 was signed in error is is [sic] therefore withdrawn. Because of courts=s error B . . . a new submission date is set for July 13th. [Plaintiff=s] to provide order reflecting court=s error, . . . rescinding 5-24-07 order, and setting new submission date.@

AAn order granting a new trial or modifying, correcting, or reforming a judgment must be written and signed.@ Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993). When a final judgment is entered, the trial court retains plenary power to vacate, set aside, modify or amend the judgment for a period of thirty days after the date judgment was rendered. See McCormack v. Guillot, 597 S.W.2d 345 (Tex. 1980). An oral pronouncement and docket entry vacating a summary judgment cannot be substituted for a written order as required by Rule 329b. See Faulkner, 851 S.W.2d at 188. In order to be effective, any action during the thirty-day period after rendition must be by written order. See McCormack, 597 S.W.2d at 346. If no written order is signed within the required time, the judgment becomes final in thirty days and the trial judge loses jurisdiction over the case. See Faulkner, 851 S.W.2d at 188; McCormack, 597 S.W.2d at 346. Any subsequent orders purporting to vacate the summary judgement are a nullity. See Faulkner, 851 S.W.2d at 188. More recently, the Texas Supreme Court has declined to overrule its precedent (thus ignoring Texas Rule of Civil Procedure 329b) requiring written orders granting new trials. See Horizon/CMS Healthcare Corp., Inc. v. Fischer, 111 S.W.3d 67 (Tex. 2003).

The cases relied upon by plaintiffs are inapposite to the case at bar. See Burns v. Bishop, 48 S.W.3d 459, 465 (Tex. App. B Houston [14th Dist.] 2001, no pet.) (rendition occurred when the judge filed a written rendition in the Harris County public record); Dearing v. Johnson, 947 S.W.2d 641, 643 (Tex. App. B Texarkana 1997, no writ) (judgment was rendered when the judge orally disposed of all issues in the case); Henry v. Cullum Companies, Inc., 891 S.W.2d 789, 793 (Tex. App. B Amarillo 1995, writ denied) (summary judgment was orally rendered); and Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex. App. B Waco 1988, no writ) (judgment was rendered when trial judge orally announced he was granting all requested relief). None of these cases involve a final judgment being vacated, set aside, modified, or amended by a docket entry.

In those cases where a final judgment was entered, the courts have consistently held only a written, signed order can vacate, set aside, modify or amend the judgment and it must be entered within thirty days or any subsequent order is void. See In re Nguyen, 155 S.W.3d 191, 193-94 (Tex. App. B Tyler 2003, orig. proceeding); Fischer v. Tenet Hospitals, Ltd., 106 S.W.3d 110, 114-15 (Tex. App. B Dallas 2002), reversed on other grounds, 111 S.W.3d 67 (Tex. 2003); In re J.H., 39 S.W.3d 688, 690 (Tex. App. B Houston [1st Dist.] 2001, no pet.); Jauregui Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Services, 960 S.W.2d 334, 336 (Tex. App. B Corpus Christi 1997, writ denied); and Cortland Line Co., Inc. v. Israel, 874 S.W.2d 178, 182-83 (Tex. App. B Houston [14th Dist.] 1994, writ denied). A final judgment was entered on May 24, 2007. Thus the trial court had plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until June 25, 2007. See Tex. R. Civ. P. 329b(d). The trial court did not enter a written, signed order until July 10, 2007, after its plenary power had expired. Accordingly, the trial court=s orders entered July 10, 2007, and July 30, 2007, are void. See State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). When a trial court issues an order after its plenary power expires, mandamus is proper. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).

We therefore conditionally grant the petition for a writ of mandamus and direct the trial court to vacate its orders of July 10, 2007, and July 30, 2007. The writ will issue only if the trial court fails to act in accordance with this opinion.

Regarding the appeal, final judgment was entered May 24, 2007, thus the notice of appeal was due June 25, 2007. See Tex. R. App. P. 26.1. The record reflects the notice of appeal was filed July 31, 2007, a date that is not within fifteen days of the due date for the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Accordingly, the notice of appeal is untimely and the appeal is ordered dismissed.

PER CURIAM

Petition Conditionally Granted; Appeal Dismissed; and Memorandum Opinion filed October 11, 2007.

Panel consists of Chief Justice Hedges, Justices Yates and Frost.