In Re: Lone Star RV Sales--Appeal from Co Ct at Law No 2 & Probate Ct of Brazoria County

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed December 20, 2007

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed December 20, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00869-CV

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IN RE LONE STAR RV SALES, INC., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R 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 ordering respondent, the Hon. Marc W. Holder, to vacate the docket control order because it was entered more than 30 days after respondent had entered final judgment when no post-judgment motion was filed and no appeal was taken. We conditionally grant the writ.

Real parties in interest, James and Faye Knape, purchased a travel trailer from Lone Star. The Knapes sued Lone Star for various defects in the trailer and the failure to repair such defects. Lone Star brought a third-party complaint against the manufacturer, Fleetwood Travel Trailers of Texas, Inc., asserting a claim for indemnification. On April 27, 2007, the trial court entered a judgment, and, on June 4, 2007, it entered a docket control order, setting the case for trial on October 22, 2007.[1]

In order to obtain mandamus relief, the relator must show that the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Sw. Bell Tele Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding). The trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Mandamus is appropriate where an order is void because the trial court did not have plenary power to enter such order. See In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (AMandamus is appropriate to set aside an order for new trial that is granted after the court's plenary power expires and that is, therefore, void.@).

The judgment states the Knapes and Fleetwood appeared through their counsel of record and A[a]s shown by the signatures below, the parties stipulate and agree, and the Court finds that Third-Party Defendant is not liable to the Plaintiffs[, and] . . . Plaintiffs take nothing from Third-Party Defendant Fleetwood Travel Trailers of Texas, Inc. on all their claims and causes of action alleged in the above-captained matter.@ The judgment was approved and entry was requested by counsel for the Knapes and counsel for Fleetwood. However, the last sentence of the judgment states: AThis judgment is a final judgment as to all parties and all claims alleged in the above-styled and numbered cause.@[2]

Lone Star contends the judgment is a final judgment and applies to all the Knapes= claims against it. The Knapes contend the judgment is not final because it is based on a settlement agreement to which only they and Fleetwood are parties.

When there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it either disposes of every pending claim and party or unless it clearly and equivocally states that it finally disposes of all claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). If the language of the order is clear and unequivocal, it must be given effect despite any other indications that one or more parties did not intend for the judgment to be final. Id. at 206. An express adjudication of all parties and claims in a case is not interlocutory merely because the record does not afford a legal basis for the adjudication. Id.

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. Id. at 205B06. However, because we find no vagueness in the judgment itself, we need not consider the record. Here, the judgment=s clear and unequivocal language disposes of all of the Knapes= claims against all parties.

A trial court retains jurisdiction over a case for a minimum of thirty days, during which time the trial court has plenary power to change its judgment. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). Certain post judgment motions, if filed within this initial thirty day period, extend the trial court=s plenary jurisdiction over its judgment for up to an additional seventy five days. Tex. R. Civ. P. 329b(c), (e) & (g); Dickason, 987 S.W.2d at 571.

The Knapes did not request the trial court to modify the judgment to reflect that only their claims against Fleetwood be dismissed. Once thirty days passed since respondent had signed the judgment, he had no power to set the Knapes= claims against Lone Star for trial, and any trial from that point on would be a nullity. See Dickason, 987 S.W.2d at 571 (holding the trial court had no power to grant the new trial and, therefore, any subsequent retrial would be a nullity). In light of the final judgment, respondent abused his discretion in entering the docket control order. Moreover, because the docket control order is void, Lone Star need not show that it does not have an adequate appellate remedy. In re Sw. Bell Tele. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).

Accordingly, we conditionally grant the petition for a writ of mandamus directing the trial court to vacate its docket control order. The writ will issue only if the trial court fails to act in accordance with this opinion.

Moreover, the Knapes filed a motion to dismiss for lack of jurisdiction, in which they asserted we do not have jurisdiction over an interlocutory appeal. Because this is an original proceeding, not an interlocutory appeal, we deny the Knapes= motion to dismiss as moot.

PER CURIAM

Petition Conditionally Granted and Memorandum Opinion filed December 20, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

[1] Although Lone Star filed its petition for writ of mandamus on October 18, 2007, it did not request that we stay the trial court proceedings.

[2] Emphasis added.