In re Mercy Hospital of Laredo, Inc., d/b/a Mercy Regional Medical Center and Mercy Hospital of Laredo d/b/a Mercy Health Center--Appeal from 111th Judicial District Court of Webb County

No. 04-01-00144-CV
IN RE MERCY HOSPITAL OF LAREDO, INC.
d/b/a Mercy Regional Medical Center and
Mercy Hospital of Laredo d/b/a Mercy Health Center
Original Mandamus Proceeding (1)

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 2, 2001

WRIT OF MANDAMUS CONDITIONALLY GRANTED

Mercy Hospital seeks a writ of mandamus commanding the trial judge to vacate his February 6, 2001 order awarding Columbia Doctors Hospital of Laredo the attorney's fees and expenses it incurred in complying with discovery requests in the underlying action. We hold the order was signed after the trial court's plenary power expired and therefore conditionally issue the requested writ.

Factual and Procedural Background

Dr. Manuel Gonzalez filed an antitrust suit against Michael Morgan and Mercy Hospital. During the pendency of the suit, Mercy Hospital sought discovery from a non-party, Columbia Doctors Hospital of Laredo. Doctors Hospital moved to quash the requested discovery and sought an award of attorney's fees. The matter was referred to a master, who stated during the ensuing hearing that he intended to grant Doctors Hospital's request for attorney's fees:

All right. I'm going to rule that the fair and reasonable expense incurred by Doctors Hospital in producing from its records kept in the regular course and scope of its operations on computer be paid by Defendants in equal shares, in equal contributions, not including any cost for attorney's fees incurred up to this point. But it will include the fair and reasonable cost of reviewing those materials by an attorney to insure [sic] the protection of rights and privileges to Doctors Hospital.

The discovery from Doctors Hospital was completed in June 1999. However, Doctors Hospital did not obtain a signed order memorializing the master's stated intentions or introduce any evidence of its fees before November 23, 1999, when the trial court signed an agreed judgment dismissing Gonzales' suit with prejudice.

On December 20, 1999, Doctors Hospital filed a motion seeking to "enforce" the master's oral ruling. This motion was first heard February 22, 2000. At that hearing, the trial court ruled its plenary jurisdiction had expired. The court later granted Doctors Hospital's motion to reconsider and, on February 6, 2001, conducted an evidentiary hearing and signed an order awarding Doctors Hospital $21,778.61 in attorney's fees and costs.

Prerequisites for Mandamus Relief

A writ of mandamus will issue only if the relator establishes it does not have an adequate remedy by appeal to redress a clear abuse of discretion by the trial court. Walker v. Packer, 827 S.W.2d 833, 839-42 (Tex. 1992). The writ is therefore a proper means to require a trial court to withdraw an order signed after the trial court' plenary power has expired. See, e.g., City of Laredo v. Schuble, 943 S.W.2d 124, 126 (Tex. App.-San Antonio 1997, orig. proceeding); cf. Dunn v. Street, 938 S.W.2d 33, 35 (Tex. 1997) (per curiam) (orig. proceeding) (writ will issue to compel trial court to set aside void order because signing void order is necessarily an abuse of discretion for which ordinary remedy by appeal is inadequate).

Discussion

Mercy Hospital contends the trial court's February 6, 2001 order is void because it was signed after the expiration of its plenary power. We agree.

A trial court's plenary power to vacate, modify, or correct a final judgment expires thirty days after the date the judgment is signed unless plenary power is extended by a party's postjudgment motion. Tex. R. Civ. P. 329b(d)-(e). Thereafter, the court's power is limited to enforcing its judgment. Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982). Thus, an order modifying a final judgment signed after the expiration of its plenary power is void. See In re Southwestern Bell Telephone Co., 35 S.W.3d 602, 605 (Tex. 2000).

Because no party filed a Rule 329b motion within thirty days of the trial court's December 23, 1999 judgment, the trial court's plenary power expired thirty days thereafter on January 24, 2000 - long before the court signed its February 6, 2001 attorney's fees order. It thus appears the February 6 order is void. Doctors Hospital makes two arguments to the contrary. First, Doctors Hospital contends the trial court's order merely enforced the master's earlier oral ruling. We disagree for one simple reason: There was nothing to enforce; the master never made a monetary award of attorney's fees. Doctors Hospital also contends Mercy Hospital waived its right to seek mandamus relief because it did not object to or appeal the master's ruling. However, in the absence of a signed written order reflecting the master's intentions, Mercy Hospital had no opportunity to either object or appeal; it thus cannot be held to have waived a right it never had.

Conclusion

Because the trial court's February 6, 2001 order was signed after the expiration of its plenary power, it is void. Therefore, if the Honorable Raul Vasquez does not vacate the order within ten days of the date of this opinion, the clerk will be directed to issue a writ of mandamus commanding him to do so.

Sarah B. Duncan, Justice

Do not publish

1. This proceeding arises out Cause No. 96-CVQ-01608-D2, styled Manuel Gonzalez, M.D. v. Michael Morgan, Mercy Hospital of Laredo, Inc. d/b/a Mercy Regional Medical Center, and Sisters of Mercy Health System, St. Louis, Inc., in the 111th Judicial District Court, Webb County, Texas, the Honorable Raul Vasquez presiding.