In re Dixie Griffith d/b/a Discount Furniture Warehouse--Appeal from 225th Judicial District Court of Bexar County

No. 04-03-00322-CV
IN RE Dixie GRIFFITH d/b/a Discount Furniture Warehouse
Original Mandamus Proceeding (1)

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 2, 2003

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

Dixie Griffith ("Griffith") seeks mandamus relief from the trial court's orders that declare a default judgment to be interlocutory and grant a motion for new trial. Griffith contends that the trial court's orders were void because they were entered after the trial court's plenary power had expired. Because we conclude that the default judgment was a final judgment and the trial court's plenary power had expired before it entered the orders, we conditionally grant the petition for writ of mandamus.

Factual Background

Griffith was a tenant in a building owned by Arthur and David Lefton ("Leftons"). Griffith sued the Leftons, claiming actions they had taken forced her to conduct a "fire sale" at which she sold $300,000 in inventory for $10,000. The Leftons failed to timely answer. The trial court entered a default judgment on November 25, 2002, awarding Griffith $700,000 in trebled economic damages, $580,000 in trebled mental anguish damages, and $2,000 in attorneys' fees.

On December 3, 2002, the district clerk mailed notice of the judgment to the Leftons. On January 29, 2003, Griffith filed an abstract of judgment.

On February 7, 2003, the Leftons filed a motion to extend post judgment deadlines and motion for new trial. The Leftons contended that they did not receive notice or acquire actual knowledge of the judgment until February 3, 2003. The Leftons and their counsel later admitted that the affidavits stating they had not received notice until February 3, 2003 were false and that each of the Leftons had received the notices the district clerk mailed on December 3, 2002.

On February 28, 2003, the Leftons filed a motion to set aside the default judgment and for a new trial, claiming that the default judgment was interlocutory because it contained blanks in the portion of the judgment awarding attorneys' fees. On March 12, 2003, the trial court entered a partial order on the Leftons' motion for new trial, concluding that the default judgment was interlocutory and the trial court retained plenary jurisdiction. On March 13, 2003, the trial court granted the Leftons' motion for new trial. The trial court modified its order granting the motion for new trial on April 4, 2003, to address attorneys' fees and sanctions. Griffith seeks mandamus relief from these orders.

Discussion

The default judgment was signed on November 25, 2002. Unless the judgment was interlocutory, the new trial was granted outside the trial court's plenary jurisdiction and is void. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998). Mandamus is appropriate to set aside an order for new trial that is granted after the court's plenary power expires. Id.

A judgment is final if it disposes of all pending parties and claims in the record. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Whether a judicial decree is a final judgment must be determined from its language and the record in the case. Id. A default judgment carries no presumption of finality, and we must divine the intention of the trial court from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties. Zamarripa v. Sifuentes, 929 S.W.2d 655, 657 (Tex. App.--San Antonio 1996, no writ).

With regard to attorneys' fees, the judgment recites:

5. attorneys' fees in the amount of $2,000 (2) for obtaining this judgment; $_____ for the successful defense of a motion for new trial or motion to set aside this judgment; $______ for the successful defense of an appeal to the Fourth Court of Appeals; and $________ for the successful defense of an appeal to the Supreme Court of Texas;

The judgment further recites, "Plaintiff is allowed such writs and processes as may be necessary in the enforcement and collection of the judgment. Let execution issue. All relief not expressly granted herein is denied."

During the default judgment hearing, the following discussion occurred regarding attorneys' fees:

MR. DECKER: . . . Attorneys' fees I will leave to the judge's discretion. To date plaintiff's attorneys have put into this file about 3,000 - $3,500.

*******

THE COURT: Do you have the certificate of last known address?

MR. DECKER: I do.

THE COURT: Make sure that's filed with the court.

MR. DECKER: Yes, sir. I also have a sailor's and soldier's affidavit, and as far as attorney's fees, there are blanks in the judgment.

THE COURT: How much [do] you want for attorneys' fees?

ME. DECKER: As I said, we have put in 3500 up to today.

If the judgment had not addressed attorneys' fees, the judgment would have been interlocutory. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001). In this case, however, Griffith's attorney drew the trial court's attention to the blanks in the attorneys' fee portion of the judgment, and the trial court inserted an award for attorneys' fees incurred in obtaining the judgment. The amount awarded by the trial court was less than the amount the attorney testified had been incurred. The trial court had the discretion not to award any additional attorneys' fees, especially given the absence of testimony regarding how much should be awarded in conditional appellate fees. Furthermore, the trial judge appeared to believe the judgment was final because he instructed the attorneys to return to his court "[w]hen they turn this around," implying that the parties should return to his court when a motion for new trial was filed as evidenced by the subsequent sanction imposed on Griffith's attorney for his "failure to follow the Court's express order." Because the record reflects that the trial court addressed the attorneys' fees issue and the judgment contemplated immediate enforcement and execution, the blanks in the attorneys' fee award do not render the default judgment interlocutory.

With regard to whether the judgment addressed Griffith's claims other than the DTPA claims, the default judgment states, "That in her Original Petition, Plaintiff sought a judgment against Defendants Lefton for their breach of contract, tortious interference, common law fraud/intention [sic] misrepresentation, intentional infliction and violation of the Texas Deceptive Trade Practices Act. The factual basis of these claims was the wrongful eviction and forced sale of her inventory from Ms. Griffith's business that had been resident under a lease upon premises owned by Defendants. That as a result of Defendants [sic] conduct, Plaintiff suffered damages in the amount of $1,265,000.00." The judgment only later states, "That by virtue of Defendants' default and the evidence presented by Plaintiff Dixie Griffith, the Court finds that Defendants [sic] conduct was an unconscionable act that constitutes a violation of the Texas Deceptive Trade Practices Act. The actions of Defendants as outlined in Plaintiff's Original Petition and affidavit submitted in support of the judgment were done knowingly and intentionally thereby allowing for treble damages of both economic damages and mental anguish damages." The statement that Plaintiff suffered damages "as a result of Defendants [sic] conduct" unambiguously relates to all of Griffith's claims. The express DTPA finding was based on the evidence presented during the hearing, and the second limited reference to the DTPA claim was to allow treble damages. The judgment expressly references and addresses all of Griffith's claims.

With regard to prejudgment interest, "if there are no facts in the record to call into question the date on which prejudgment interest should accrue, then the calculation of prejudgment interest is a mere ministerial act" and the failure to include a prejudgment interest award does not make the default judgment interlocutory. Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 442 (Tex. App.--Houston [1st Dist.] 2000, no pet.). In this court's opinion in Zamarripa v. Sifuentes, 929 S.W.2d at 657-58, the calculation of prejudgment interest was not ministerial because the record reflected that written settlement offers were exchanged, resulting in a statutory tolling of prejudgment interest. In Olympia Marble & Granite, the calculation of prejudgment interest was not ministerial because the record indicated that there were periods in which trial was delayed giving the trial court discretion to toll prejudgment interest. 17 S.W.3d at 443.

The date of Griffith's petition is contained in the record - October 17, 2002. The Leftons were served on October 22, 2002. The answer date was November 18, 2002. The default judgment recites that Griffith requested the entry of a default judgment on November 25, 2002. Accordingly, the record does not reflect any period in which trial was delayed.

With regard to the written notice of claim, during the hearing regarding the attorneys' fees the trial court was to award Griffith in granting the new trial, Griffith's attorney relied on billing records and stated that a DTPA demand letter was sent on October 2, 2002. On October 7, 2002, Griffith's attorney had conversations with one of the defendants and his insurance adjuster. After those attempts failed, Griffith's attorneys filed the petition on October 17, 2002. The Leftons rely on a later portion of the reporter's record from the same hearing to assert, "The record reflects that pre-suit communications were made regarding the dispute and plaintiff's claims. Thus, prejudgment interest might accrue at a date earlier than the filing of the suit."

Subject to tolling for written settlement offers and trial delays, prejudgment interest in this lawsuit would accrue beginning on the earlier of the 180th day after the date the Leftons received written notice of a claim or on the date the suit was filed. Tex. Fin. Code 304.104 (Vernon Supp. 2003). Contrary to the Leftons' assertion, the record reflects that the DTPA demand letter (written notice of claim) was sent prior to any other "pre-suit communications." The remaining question is whether the absence of record evidence regarding when the DTPA demand letter was received by the Leftons precludes this court from finding that the calculation of prejudgment interest was ministerial. The answer is no. Griffith points out in her response that written notice was sent on October 2, 2002, and her attorney had phone conversations with the defendants and their insurance adjuster on October 7, 2002. Assuming the letter was received between the day it was sent and the day of the subsequent phone conversations, the 180th day after the date of receipt would be sometime in April of 2003. The lawsuit was filed October 17, 2002, which is much earlier than any date in April of 2003. Therefore, prejudgment interest accrued beginning on October 17, 2002, and its calculation is ministerial. As a result, the default judgment was final.

With regard to the judgment as a whole, we note the Texas Supreme Court's statement in Lehmann that "an order that all parties appear to have treated as final may be final despite some vagueness in the order itself." 39 S.W.3d at 206. After the judgment was entered, the clerk treated the judgment as final by sending notice of judgment as required by rule 306a(3), Griffith treated the judgment as final by filing an abstract of judgment, and the Leftons treated the judgment as final by claiming they did not receive the notice required by rule 306a(3), which is only required to be sent in relation to a final judgment or other appealable order, and by seeking to extend the deadlines pursuant to rule 306a(4). Although we hold that the default judgment was final on its face, even if the Leftons believed the judgment contained some vagueness, the Leftons treated it as final - at least until the Leftons' efforts to extend the deadlines under rule 306a(4) failed.

Conclusion

Because the trial court's orders dated March 12, 2003, March 13, 2003, and April 4, 2003, were entered after the trial court's plenary power had expired, they are void. Accordingly, we conditionally grant the writ of mandamus. The writ will only issue if the trial court fails to withdraw the orders within ten days from the date of our opinion and order.

Alma L. L pez, Chief Justice

1. This proceeding arises out of Cause No. 2002-CI-15103, styled Dixie Griffith d/b/a Discount Furniture Warehouse v. Arthur Lefton and David Lefton, pending in the 225th Judicial District Court, Bexar County, Texas. The Honorable Frank Montalvo entered the Partial Order on Defendants' Motion for New Trial (Interlocutory Nature of Judgment) on March 12, 2003, ordering that the default judgment was interlocutory, and the Honorable Pat Boone entered orders on March 13, 2003, and April 4, 2003, granting the defendants' motion for new trial.

2. The $2,000 was handwritten by the trial judge in a blank contained in the judgment.