The key facts of Vetri Ventures LLC v. Westridge Eagles Nest Owners Association were as follows:

• Judge A (a senior judge appointed by assignment) presided over a bench trial, in a dispute about assessments by a homeowners’ association, on April 6, 2021;
• A May 24 docket entry, followed by a May 25 email from the court coordinator, indicated Judge A’s ruling on all matters except the amount of attorneys’ fees, and requested submission of an appropriate order;
• In November 21, after a hearing on the motion for judgment, Judge B (the elected judge for the court) entered final judgment that included a fee award.
• Judge B then signed findings of fact and conclusions of law, after which Judge A signed amended findings and conclusions.

Held:

• The coordinator’s email was not an effective “rendition” of judgment: “The email was sent only to the parties’ counsel. The trial court did not orally announce, in open court, its decision on the issues addressed in the court administrator’s email. Nor did the court deliver the email to the clerk of the court for filing, entry, or inclusion in the public record or take any actions reasonably calculated to effectuate such delivery.”
• Because the email was not a rendition, Judge B lacked authority to “merely memorialize” that rendiition with a final written judgment.

No. 05-21-01172-CV (March 15, 2024) (mem. op.) Enthusiasts of this sort of Texas appellate arcana will enjoy my Baylor Law Review article about “Judgment Rendition in Texas,” co-authored with the able Ben Taylor.

If you are an enthusiast of the three-step process for judgment formation in Texas (rendition, signing, and entry), then you should read my 2023 Baylor Law Review article that I co-authored with Ben Taylor about the general topic, and then read Baker v. Bizzle, No. 22-0242 (Tex. March 1, 2024), in which the Texas Supreme Court applies that framework to a letter ruling.

Specifically, it held that no “rendition” occured when: “It is undisputed that the trial court did not orally announce, in open court, its decision on the issues addressed in the October 4 email. Nor is it alleged that the court delivered the email to the clerk of the court for filing, entry, or inclusion in the public record or took any actions reasonably calculated to effectuate such delivery.”

A thoughtful concurrence recommends attention to this long-standing process in modern-day rulemaking, observing: “Our system’s tedious distinction among “rendering” judgments, “signing” them, and “entering” them was necessary in early Texas, when judges would travel by horseback to attend court in far-flung locations. The confusion sown by these distinctions today, however, is needless and intolerable.” 

“[D]oes severing claims disposed of on partial summary judgment into a new action render the judgment final even though other claims between the parties remain pending in the original action? We answer yes. When claims are severed into separate actions, the two-part Lehmann test for finality applies to each action separately. Thus, any claims that remain pending in the original action are not relevant in deciding whether there is a final judgment in the severed action. And although severance is improper if the claims are interwoven, any procedural error in ordering severance—which carries its own consequences—does not affect judgment finality or appellate jurisdiction.” Sealy Emergency Room LLC v. Free Standing Emergency Room Managers of Am., LLC, No. 22-0459 (Tex. Feb. 23, 2024) (emphasis added, citation omitted).

In a per curiam opinion, the supreme court reversed a Thirteenth Court opinion involving persistent – if unlucky – efforts to get a case to the court of appeals: “Mother timely noticed her appeal from both judgments under consideration by the court of appeals. The court of appeals erred in rejecting jurisdiction after Mother relied on the appellate court’s ruling rendering her initial appeal interlocutory.” In the Interest of A.C.T.M., No. 23-0589 (Dec. 29, 2023).

In the latest Baylor Law Review, you can read an article that I co-wrote with the capable Ben Taylor called “Judgment Rendition in Texas” – here’s a link, and this is the abstract:

.

Novak v. State Farm Lloyds reminds of the importance of following through on the motion practice necessary to establish the receipt of an instrument: “Though appellants attempted to invoke the civil procedure rule 306a(4) and (5) procedure to have the trial court determine the date they received notice of the dismissal as October 11, 2021, such that their motion to reinstate was timely and properly invoked the court’s jurisdiction, they did not request the trial court to issue a ruling to that effect, and the trial court did not do so in any order. ‘Without a finding of the date notice was actually received,’ and a written order to that effect, the motion to reinstate was untimely.” No. 05-22-00061-CV (Sept. 5, 2023) (mem. op.).

Texas R. Civ. P. 301 says that a judgment “shall conform to the pleadings.”

In In the Interest of SMG and AIG, a petition for name change asked that two children have their name changed from “Gonzalez Rodriguez” to “Rodriquez.” At the hearing, the petitioner said that “Gonzalez” could also be the middle name.

(In Mexico, the convention is to have two last names–a practice that does not always match with American legal forms.)

The children ended up with the hyphenated last name of “Gonzalez-Rodriguez.” The Fifth Court reversed because that relief did not comport with Rule 301. It expressed no view on the sufficiency of the evidence to support such a change. No. 05-22-00937-CV (June 13, 2023) (mem. op.).

The clerk sent notice of judgment to an outdated address for counsel, after he had notified the court of the change, and took no further action when that notice was returned by the Post Office. The Fifth Court granted relief from that judgment in a restricted appeal in Getmeplacement LLC v. Wiese Indus., LLC, No. 05-21-00133-CV (Oct. 31, 2022) (mem. op.).

Awards of appellate attorneys’ fees have become more detailed in recent months, following a Texas Supreme Court that clarified the necessary proof requirements. Bucking that trend, the prevailing party in Wafer v. Hiltop Residential obtained an award, “in the event of an unsuccessful appeal by [appellant], any reasonable and necessary amounts.” The Fifth Court dismissed the appeal for want of jurisdiction, as that language did not resolve the issue of appellate fees. The Court noted that the phrase was insufficient for “ministerial officers [to] carry the judgment to execution without ascertainment of facts” not stated in the judgment. No. 05-22-00546-CV (Aug. 29, 2022) (mem. op.).(Thanks to the eagle-eyed Ben Taylor for catching an error in my original post!)

A well-known Zen koan involves the sound of one hand clapping. Similarly, JMJ Development, LLC v. Ramolia involved the Texas test for whether a judgment is final, which can be satisfied whether or not the judgment is, in fact, a resolution of all mattters in dispute:

Regarding finality, the trial court’s judgment states “This judgment finally disposes of all parties and claims and is appealable.” Appellants asserts this language conflicts with the language in the order granting summary judgment on “his claims” instead of granting summary judgment on all claims. However, nothing on the face of the order suggests that there is any claim or party that remains pending. Appellants’ argument might have merit had the judgment lacked the finality phrase. However, since the judgment included a finality phrase, it was clear and unequivocal, the record is irrelevant, and further analysis is prohibited.

No. 05-21-01100-CV (July 27, 2022) (mem. op.).

Fans of appellate terminology will recall a recent blog post about the distinctions among the words “rendered,” “entered,” and “signed” in the context of judgments. The Fifth Court applied those distinctions in In the Interest of C.D.G., a challenge to a judgment entered nunc pro tunc. The Court said:

• “A judgment is ‘rendered’ when the decision is officially announced either orally in open court or by memorandum filed with the clerk. On the other hand, a judgment is ‘entered’ after being signed by the trial court judge.”
• Therefore: “The nunc pro tunc requirement is satisfied only if there is some evidence that the trial court had, at some point before the original order was entered, rendered judgment inconsistent with the language actually entered in the original order. If nothing in the record shows that there is a discrepancy between the judgment as rendered and the judgment as entered, we are compelled to hold that the error in the signed final judgment was a judicial error and thus a judgment nunc pro tunc cannot stand.”
• And importantly: “The focus is … on the actions of the court, not the parties. Thus, the mere fact that the parties entered into an [agreement] or filed it with the court, without more, does not translate that act into the entry of a judgment thereon by the court. A judicial error is an error which occurs in the rendering as opposed to entering of a judgment.”

No. 05-21-00132-CV (July 15, 2022) (mem. op.) (citations omitted, emphasis in original).

The issue in Bluestone Resources, Inc. v. First Nat’l Capital, LLC was a judgment that included post-judgment interest, by the court that confirmed an arbitration award, when the award itself was silent about post-judgment interest. The Fifth Court held:

“We acknowledge there is a line of cases … that appears to conclude the award of any post-judgment interest is unauthorized unless such interest was awarded by the arbitrator.  We respectfully disagree. Interest on a money judgment accrues automatically and is recoverable even if it is not specifically awarded. We see no reason why a judgment confirming an arbitration award, which is a ‘money judgment of a court of this state,’ would be exempt from this rule.”

No. 05-20-00776-CV (April 29, 2022) (citations and footnote omitted).

In Wofford v. Pinnacle:

• A summary judgment, granted on July 20, 2021, disposed of some but not all claims in the litigation;
• On July 29, the claims addressed by that summary judgment were severed into a new cause (thus creating a final judgment as to those matters);
• On August 30, 2021, the trial court’s plenary power expired in the new cause; and
• In October 2021, the trial court signed a final judgment in the new cause which was later appealed.

The Fifth Court dismissed for lack of jurisdiction: “[B]ecause the July summary judgment was made final by the severance and the trial court’s plenary power expired August 30, the October final judgment is void.” No. 05-22-00071-CV (April 18, 2022) (mem. op.).

The would-be appellant in Cosentino v. Frost Bank tried to appeal a ruling about arbitrability by using the Crowson precedent about what “finality” means in longrunning probate proceedings. The Fifth Court did not accept the argument, reasoning: “As reflected in the parties’ live pleadings, the ancillary proceeding was brought as a declaratory judgment action concerning the validity and enforceability of the PMA [premarital agreement]. The order compelling arbitration determined a preliminary issue within that cause of action—that the PMA was properly executed such that an agreement to arbitrate existed and arbitration of those issues could be compelled—not a cause of action in itself that could be asserted independently as its own lawsuit.” No. 05-21-00829-CV (Feb. 16, 2022) (mem. op.).

The judgment-finality issue in Paxton v. Simmons involved a conflict between the Lehmann finality language and handwritten edits to a form of judgment. Held:

“To the extent Ms. Simmons contends the judgment’s statement that ‘[t]his final judgment disposes of all claims and all parties, and is appealable” automatically makes the judgment final, we disagree. The Lehmann dictum she cites does not purport to address a circumstance where, as here, the judgment’s substance directly conflicts with that statement. Our supreme court has instructed that ‘[c]lear and unequivocal language that reflects an intent to dispose of the entire case is given effect, but when there is doubt about finality, the record resolves the issue.’ Here, as Ms. Simmons asserts in her appellate reply brief, the trial court ‘must make further determinations before the issues are finally disposed of.’ On this record, we conclude the December 20, 2019 judgment is not final and appealable.”

No. 05-20-00058-CV (Jan. 21, 2022) (emphasis added).

To the right, Mother Hubbard plays well with her dog, but in Eagle Remodel LLC v. Capital Financial Corp., Mother Hubbard did not play well with a summary-judgment order: “Appellant asserts in a letter brief filed at our direction that the order is appealable because appellee did not file a counterclaim for fees and the order included a ‘Mother Hubbard’ clause stating that ‘All relief not expressly granted herein is denied.’ As appellee notes in its response, however, a ‘Mother Hubbard’ clause is not indicative of finality when, as here, a conventional trial on the merits was not held.” No. 05-21-00625-CV (Jan. 5, 2022) (mem. op.) (applying Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001)).

This is a cross-post from 600Hemphill, which follows commercial litigation in the Texas Supreme Court:

“[W]e adopt the following two-step inquiry for determining when requests for findings and conclusions that are not required by the rules will trigger the extended ninety-day filing deadline. First, was the non-jury proceeding a type in which the trial court could consider evidence? Second, if so, was there evidence before the court? When the answer to both questions is yes and a party requests findings and conclusions, all parties benefit from the extended appellate timetable.

The first question is categorical, not case-specific. For example, it will be answered yes for a judgment following a bench trial, a default judgment on a claim for unliquidated damages, a judgment rendered as sanctions, and any other judgment that could be based in any part on an evidentiary hearing.

The second question is case-specific and focuses on whether evidence was presented to the trial court, not whether that evidence proved to be necessary in hindsight. In answering this question, it is not relevant whether the evidence presented was disputed, or jurisdictional, or material to an issue later raised on appeal.” Phillips v. McNeill, No. 19-0831 (Dec. 3, 2021) (citations omitted, emphasis added) (applying IKB Inus. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997) and Gene Duke Builders, Inc. v. Abilene Housing Auth., 138 S.W.3d 907 (Tex. 2004) (per curiam)).

The key facts of In re Woods Capital Enterprises are as follows:

• Woods Capital sued DXC Technology in Collin County for breach of a contract to sell real property, and filed a lis pendens.
• DXC moved to dismiss under the TCPA and to expunge the lis pendens.
• The trial court expunged the lis pendens, after which DXC (a) tabled its fee application related to the lis pendens, given the pending TCPA motion, (b) argued and won the TCPA motion, and (c) sought fees in connection with the TCPA motion.
• The trial court then dismissed Woods Capital’s case, awarded fees to DXC, and included a “Mother Hubbard” clause in that order.
• Woods Capital appealed and obtained reversal of the TCPA ruling in DXC’s favor. Upon remand, Woods Capital nonsuited its claims and filed a new suit in Dallas County.
• In the Collin County case, DXC filed a counterclaim for its fees associated with the lis pendens ruling.

Woods Capital filed a plea to the jurisdiction against the counterclaim, noting its nonsuit. The Collin County trial court denied the plea and the Fifth Court granted mandamus relief against that ruling, holding that the nonsuit – coupled with the Mother Hubbard clause in the earlier order – extinguished the earlier lawsuit. “Had DXC believed the trial court erred by denying its lis pendens fee application, it needed to file a cross appeal in the TCPA case.” No. 05-21-00188-CV (Nov. 8, 2021) (mem. op.).

A recent “Writing Wednesday” post on this blog examined the distinctions among “signing,” “entry,” and “rendition.” Midwest Compressor Systems v. Highland Imperial reviews the contours of “rendition” and found that one occurred when the trial court orally stated: “Motion for directed verdict is granted. Court finds that this case does fall under the statute of frauds requirements.” Accordingly, a motion for a trial amendment that came after that announcement was untimely. No. 05-19-01115-CV (June 22, 2021) (mem. op.).

With respect to court orders and judgments, the words “signed,” “rendered,” and “entered” are often used interchangeably. But those words have specific, technical meanings, and it is wise to remember those meanings when differences matter.  Accord, Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978) (“Judges render judgment; clerks enter them on the minutes.  …  The entry of a judgment is the clerk’s record in the minutes of the court.  ‘Entered’ is synonymous with neither ‘Signed’ nor ‘Rendered.’”).

Two rules set the background as to when critical countdowns commence:

• Tex. R. Civ. P. 306a: “The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court’s plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules authorize a party to file …”
• Similarly, Tex. R. App. P. 26.1 begins: “The notice of appeal must be filed within 30 days after the judgment is signed, except as follows …”

By contrast, “[j]udgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk.”  E.g., S&A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam).  And the above-quoted paragraph from Rule 306a concludes: “… but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose.”

By contrast, entry of judgment refers to the recording of a rendered judgment in the court’s official records. See, e.g., Lone Star Cement Corp v. Fair, 467 S.W.2d 402, 405 (Tex. 1971) (“The law is settled in this state that clerical errors in the entry of a judgment, previously rendered, may be corrected after the end of the court’s term by a nunc pro tunc judgment; however, judicial errors in the previously rendered judgment may not be so corrected.” (emphasis added)).

I gratefully acknowledge the excellent insights of Ben Taylor in preparing this post!

Cooper v. Cooper presented an issue about the entry of a consent judgment after one of the parties withdrew its approval. The Fifth Court found that by the time judgment was rendered, the trial court was on notice about the issue with that party’s consent, making it an abuse of discretion to proceed to entry of judgment based on the earlier agreement. No. 05-20-00507-CV (May 4, 2021) (mem. op.) This topic can be surprisingly challenging in Texas state practice given the wide range of agreements covered by Tex. R. Civ. P. 11 — this is a 2019 article that I co-authored about some of those procedural issues.

“Texas law provides district court judges with ‘the power to
issue writs necessary to enforce their jurisdiction.’ While the Taxing Entities urge the Post Judgment Order falls within this power to ‘enforce’ the judgment, they fail to explain how an order withdrawing part of the relief afforded by the judgment would amount to ‘enforcement’ or be available to a party after expiration of the trial court’s plenary power other than by appeal.” NMF Partnership v. City of Dallas NMF Partnership v. City of Dallas, No. 05-19-01578-CV (March 17, 2021) (mem. op.) (citations omitted).

On rehearing, the Fifth Court reversed field and allowed a post-trial pleading amendment to stand, after previously holding that the amendment was invalid. Murphy v. Mejia Arcos, No. 05-18-01342-CV (Dec. 11, 2020). The relevant motion to amend was timely as it was filed before the entry of an amended judgment.

The paternal-rights case of In re AEJ fully reviewed the somewhat-untidy law about Tex. R. Civ. P. 299 and its consequences, and made these observations and conclusions. As to the requirements of the rule:

• Tex. R. Civ. P. 299 says: “Findings of fact shall not be recited in a judgment. If there is a conflict between findings of fact recited in a judgment in violation of this rule and findings of fact made pursuant to Rules 297 and 298, the latter findings will control for appellate purposes. Findings of fact shall be filed with the clerk of the court as a document or documents separate and apart from the judgment.” (emphasis added);
• One line of Fifth Court cases holds “that findings in the body of a judgment ‘are inappropriate and may not be considered on appeal’.”;
• However, another line of Fifth Court cases says that “[b]ecause the record does not contain any additional findings of fact or conclusions of law, the findings in the
  judgment have probative value and will be treated as valid findings.”

The Court found that on this record, the trial court made adequate findings in a  memorandum ruling (observing, in a footnote, that the Court was not bound by the lable placed on findings by the trial court). The Court also found no harm from any lack of findings, noting that the record and issues were well-defined and straightforward. It concluded with a practical observation: “And finally, in this case the remedy for a failure to make findings would be to abate the appeal and direct the trial judge to file findings on endangerment and best interest—presumably the very findings she has already made twice.” No. 05-20-00340-CV (Aug. 31, 2020).

The plaintiffs in In re Outreach Housing sought to enforce a (revived) 2006 default judgment that was not final under the applicable standards. The Fifth Court granted mandamus relief as to the trial court’s denial of the defendants’ motion to stay. It found an abuse of discretion in that decision, with irreparable consequences arising from the denial of a meaningful appeal from the 2006 judgment, and some parties’ lack of a meaningful trial. The Court acknowledged a technical point about a potential interlocutory appeal from the denial of the motion, but found that matter too speculative to deny mandamus relief in these circumstances. No. 05-20-00431-CV (July 30, 2020).

In addition to a thorough review of Batson law as applied to Hispanic potential jurors,  Murphy v. Mejia Arcos provides a powerful example of the rules about post-trial pleading amendments.

On the one hand, “pursuant to rules 63 and 66 of the Texas Rules of Civil Procedure, a trial court must allow a postverdict amendment that increases the amount of damages sought in the pleadings to that found by the jury unless the opposing party presents evidence of prejudice or surprise.” (emphasis added)

But at the same time, “a trial court cannot grant a motion for leave to amend the pleadings after the court signs the judgment.”

Accordingly, the trial court abused its discretion when it (1) signed a final judgment, (2) granted the plaintiff’s motion to amend the pleadings, and then (3) signed a new judgment without an order setting aside the first one. “Because the trial court never signed a written order vacating the August 9, 2018 final judgment, its oral pronouncement [about vacating that judgment] was ineffective, so the August 9,
2018 judgment continued in force and effect. . . . [A]t all times after August 9, 2018, there has always been a final judgment in this case. Therefore, the trial court did not follow the guiding principles of law that it cannot grant leave to file an amended pleading after judgment.” 

As a result, the judgment was reduced to $200,000 (the maximum amount sought specified by the plaintiff’s trial pleading) from the $1,000,000 awarded in the jury’s verdict. No. 05-18-01342-CV (July 17, 2020).

The Fifth Court’s recent opinion in Guillory v. Dietrich addressed the appropriate subjects for findings of fact. The Court continued discussion of that subject in King Aerospace, Inc. v. King Aviation Dallas, a rare state-court trademark-infringement case. (The substantive holdings of King will be discussed in later posts.) The  Court rejected the appellants’ arguments that these additional findings of fact should have been made:

• A finding about the “tacking” doctrine about a trademark’s use, when that doctrine was not necessary to support the trial court’s judgment, as well as a similar unnecessary finding about the effect of the Appellee’s bankruptcy;
• “Although the trial court made no specific finding regarding the date [Appellee] began using the . . . mark, it concluded Appellee had prior common law rights in that mark” (emphasis added);
• Appellant objected that the findings “fail to specify how [Appellee] used the marks in commerce and the effect of [his] inability to work after his accident,” as to which the Court found: “The trial court found that [Appellee] continuously used the . . . marks and neither abandoned them nor intended to abandon them. These findings sufficiently address the controlling issues and are all that is required.”

No. 05-19-00245-CV (April 30, 2020) (mem. op.).

Associate judges play a valuable role in helping cases move along. The relevant statute sets limits, however, as illustrated by Kam v. Kam, No. No. 05-19-01293-CV (April 10, 2020) (mem. op.): “The final judgment here was signed by the associate judge but not the judge of the referring court. While the associate judge may have decided all issues and the parties may have agreed to appeal directly to this Court, the judgment is not appealable until the judge of the referring court has signed it. SeeTex. Gov’t Code §§ 54A.214(b), 54A.217(b). . . . Accordingly, we lack jurisdiction and dismiss the appeal and any pending motions.”  

In Grisaffi v. Rocky Mountain High Brands, the Fifth Court reversed and remanded a default judgment after identifying an impermissible double recovery on the key issue: “Although Grisaffi committed numerous wrongful acts against Rocky Mountain, the default judgment awards Rocky Mountain $3.5 million as compensation for ‘funds obtained through fraud, breach of fiduciary duty and conversion with respect to Series A Preferred Stock . . . .’ The default judgment further awards Rocky Mountain declaratory relief to void the issuance of that Series A Preferred Stock. Thus, both the monetary and declaratory relief awarded to Rocky Mountain compensate it for the single injury of the wrongful issuance of Series A Preferred Stock caused by Grisaffi.” No. 05-18-01020-CV (Feb. 27, 2020) (mem. op.)

The trial court required that a judgment debtor turn over certain “malpractice, Deceptive Trade Practices Act (DTPA), and Insurance Code claims to a receiver who is authorized to settle the claims and to pay the settlement proceeds to the judgment creditor in satisfaction of the underlying judgment.” The Fifth Court “conclude[d] that the turnover of each of the foregoing claims, with the exception of one c’laim asserted under the Insurance Code, is void because it is against public policy.” Goin v. Crump, No. 05-18-00307-CV (Jan. 8, 2020) (mem. op.)

(This is a cross-post from 600Hemphill, our firm’s brand-new blog about the Texas Supreme Court.)

The “Lehmann problem” – the question of when a judgment is truly final (and thus starts the appeal deadline) is a perennial challenge in Texas cases involving multiple parties and issues. The problem has drawn particular attention recently in recent months in family-law cases, where judges often prepare a letter or memo summarizing key rulings. Reversing a Dallas case that found such an instrument to be a final judgment, the Texas Supreme Court held: “[A]n order lacking the unmistakable language of finality—that it resolves all claims between and among all parties and is final and appealable—is ambiguous in a suit under the Family Code when the order does not comport with the statute governing final orders and is otherwise inconclusive as to its intent. If a judicial decree’s finality is ambiguous, a reviewing court should examine the record to determine the trial court’s intent.” In the Interest of R.R.K., No. 18-0273 (Dec. 13, 2019). The opinion also reviews the general contours of the test for judgment finality in Texas.

161 days after a “dwop” dismissal, the plaintiff learned of that order by reviewing the court website, and successfully sought reinstatement. In re Mart, No. 05-19-01355-CV (Dec. 9, 2019) (mem. op.) Tex. R. Civ. P. 306a, however, only extends the trial court’s plenary power if notice is acquired within 90 days of judgment. Observing that “the cases real party cites demonstrate she had potential avenues to obtain reinstatement of the case other than a Rule 306a(4) motion and motion to reinstate, including a restricted appeal and a bill of review,” the Fifth Court granted mandamus relief because the trial court’s reinstatement order was void.

John Doe, a shadowy figure who has haunted Anglo-American jurisprudence for centuries, produced a failure of appellate jurisdiction in Chappell v. City of Balch Springs. Chappell sued “the City of Balch Springs, Shaila Lynn Gay, Jonathan Haber, and John Doe Supervisors 1-5.” The three named defendants successfully moved to dismiss under Rule 91a, but Chappell was unable to appeal because her “claims against John Doe Supervisors 1-5 remain pending” and thus kept the Rule 91a order from becoming a final judgment. No. 05-19-01046-CV (Oct. 7, 2019) (mem. op.)

The appellant in Sumner v. Harbor Owners Ass’n disputed the conditioning language used in an award of attorneys’ fees against him, arguing that an award of “$10,000 in attorneys’ fees if [appellant] unsuccessfully appeals to the Texas Supreme Court” failed to ” set out the steps in an appeal to the Texas Supreme Court.” The Fifth Court found that this level of detail was unnecessary, and “[b]ecause the award of appellate fees is conditioned on [Appellant]’s unsuccessful appeal, we conclude the trial court’s award
is not in error.” No. 05-18-00580-CV (May 1, 2019) (mem. op.)

In a recent mandamus opinion, the Fifth Court found that laches began to run when a coordinator’s “e-mail states specifically that the judge had granted the motion to strike and, as such, signing an order was merely a ministerial act.” In re Yamaha Golf-Car Co., 05-19-00292-CV (April 8, 2019) (mem. op.) As a direct-appeal counterpoint, Swart v. Morales holds: “Although the record includes a memorandum ruling on the trial court’s letterhead, the ruling is not signed. This Court has jurisdiction over appeals from signed orders or judgments. Without a signed appealable order, this Court lacks jurisdiction over this appeal.” No. 05-18-01229-CV (April 10, 2019) (mem. op.) (citations omitted).

The unfortunately-worded judgment in Last Frontier Realty Corp. v. Budtime Forest Grove Homes, LLC provided:

. . . this Court finds that the Motion should be, and hereby is GRANTED in all respects.

 

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that [Last Frontier’s] claims asserted herein are hereby dismissed with prejudice, and all costs of court are taxed against [Last Frontier].

 

This order disposes of all claims and all parties.

 

This order is final and unappealable, and all relief not expressly granted herein is denied.

(emphasis added). Sensibly, the Fifth Court held: “[T]he word ‘unappealable’ is a clerical error and [we] reform the trial court’s judgment to replace ‘unappealable’ with ‘appealable.’”

In Jordan v. Klingbeil, “the trial court’s October 23 Order indicates the trial [judge] intended for its September 22 Order to constitute a final and appealable judgment that disposed of all claims.” Unfortunately for the appeal, however, the Fifth Court noted (1) “factual recitations or reasons preceding the decretal portion of a judgment form no part of the judgment itself,” and (2) “the October 23 Order cannot constitute a final judgment because it lacks the decretal language typically seen in a judgment” [such as “ordered, adjudged, and decreed,” etc.]. Because of these shortcomings with the October 23 Order, and the September 22 Order’s failure to address all causes of action or include Lehmann finality language, there was no final judgment and thus no appellate jurisdiction. No. 05-17-01228-CV (Dec. 18, 2018) (mem. op.)

The appellant in In re Knies challenged an order about an award of attorneys’ fees in connection with a discovery matter, entered four months after the trial court’s plenary power expired. The Fifth Court found that it had no jurisdiction over this void order, reasoning: “Judicial action taken after the expiration of the court’s jurisdiction is a nullity, and any orders signed outside the court’s plenary jurisdiction are void. We have no jurisdiction to consider the merits of an appeal from a void order.” (citation omitted). (Of course, in reaching that conclusion, the Court necessarily held that the order was void, which is basically the relief appellant was requesting by a different path.) No. 06-18-00919-CV (Oct. 30, 2018) (mem. op).

In an opinion from last year in a dispute as to whether Dallas or Ellis County was the proper venue, the Fifth Court remanded for additional proceedings. The trial court then ordered transfer to Johnson County and declined to reconsider, citing a lack of jurisdiction after the transfer. The Fifth Court found that its mandate had  not been followed, and that the expiration of the trial court’s plenary power before the filing of the petitioner’s mandamus petition “does not affect this Court’s authority to enforce its judgments.” Accordingly, it required the trial court to vacate its transfer order. In re F.A. Brown’s Construction LLC, No. 05-18-00804-CV (Sept. 18, 2018) (mem. op.)

X Extreme Construction won a $200,000 judgment in Dallas district court against three defendants. One of the defendants then sold his house, after which X Extreme  obtained a receivership over, inter alia, the sales proceeds. After more skirmishing, the Dallas court issued a writ of execution to sell the house; the purchasers filed suit in Denton County to enjoin the sale; and the Dallas court ordered the purchasers to dismiss the Denton case. The resulting standoff led to a petition for writ of mandamus, which the Dallas Court of Appeals conditionally granted in In re Marzwanian, No. 05-18-00485-CV (June 12, 2018) (mem. op.) The Court concluded that the Dallas court lacked jurisdiction over the purchasers, who were not parties to the underlying litigation, and that no statute or common law principle required litigation about the purchasers’ title to occur in the court that appointed the receiver.

At trial, the judge “stated the parties did not have a contract and it was taking the quantum meruit claim under advisement ‘to make a determination as to damages.'” But the judgment awarded damages for breach of contract, and the judge then entered findings of fact and conclusions of law that “the parties operated under an express contract.” Problem? No: “[W]ritten orders or judgments control over conflicting oral pronounements. . . . [T]he trial court’s written findings supersede any oral statements.” Kaur-Gardner v. Keane Landscaping, No. 05-17-00230-CV (May 14, 2018) (mem. op.)

Masa Custom Homes LLC v. Shahin arose from the untimely death of Dallas district judge Phyllis Lister Brown; before her passing, she had heard the evidence in a bench trial, indicated her rulings by mail, and held a hearing on the appropriate form of judgment. But because she died before entering judgment, another judge signed the final judgment in the matter. The Fifth Court found that judgment void: :All courts that have addressed the issue directly have held the rules of civil procedure do not authorize a judge to render judgment following a bench trial unless he personally heard the evidence on which the judgment is based.” No. 05-16-00978-CV (April 2, 2018) (applying, inter alia, Ad Villarai  LLC v. Chan Pak, 519 S.W.3d 132 (Tex. 2017)).

Enxeco Inc. v. Staley reversed a dismissal for want of prosecution, observing: “[T]he rules of judicial administration provide that civil non-jury cases should be brought to trial or final disposition within twelve months from the defendant’s appearance date. The administrative rules expressly recognize, however, that in complex cases or special circumstances ‘it may not be possible to adhere to these standards.'” (citations omitted). Here, such circumstances were presented by lengthy motion practice about forum and capacity issues. The Court gave little weight to plaintiff’s decision to not pursue discovery, noting that no rule compelled it to do so. No. 05-15-01047-CV (Jan. 9, 2017) (mem. op.)

A classic example of a “too soon” appeal appears in Bolden v. Fidelity Nat’l Title: “In the original petition, appellee sought both damages for breach of warranty of title and attorney’s fees. The trial court signed a default judgment awarding damages for breach of warranty of title. The default judgment is silent as to appellee’s claim for attorney’s fees. Because the claim for attorney’s fees remains pending, the judgment is not final.” No. 05-16-00398-CV (Oct. 14, 2016) (mem. op.)

In In re: Douglas D. Halofitis, No. 05-16-01047-CV (Sept. 27, 2016) (mem. op.), the Fifth Court gives a helpful roadmap for parties who seek to challenge a judgment of which they were given late notice.  We know that trial courts usually lose plenary jurisdiction over a judgment within 30 days after the court signs the judgment, which is also the deadline for filing an appeal. But what if you don’t receive notice of the judgment?

Under Rule 306a, when a party does not receive notice or acquire actual knowledge of judgment within twenty days, the deadlines begin to run not from the signing of the judgment, but instead from the sooner of the date the party received notice or acquired actual knowledge of the judgment or 90 days after the judgment was signed. A few pointers to keep in mind:

1. the 306a motion must be sworn and must establish the date of first notice or knowledge of the judgment and that this date was more than 20 days after the judgment was signed;
2. the 306a motion, including any evidentiary supplements necessary to satisfy the procedural requirements of 306a(5), must be filed within the court’s plenary period as calculated from the date of first notice or knowledge of the judgment;
3. the movant should seek an immediate evidentiary hearing on the 306a motion and obtain a finding of fact of the date of first notice or actual knowledge of the judgment;
4. in no event will the periods begin to run more than 90 days after the judgment is signed, meaning that if you receive notice more than 90 days after the judgment is signed, your only avenue may be a restricted appeal or bill of review; and
5. the 306a motion should be coupled with a post-judgment motion, e.g. motion for new trial, motion to reinstate, or motion to modify judgment. If you wait for a decision on your 306a motion, your post-judgment motion may end up being untimely even if your Rule 306a motion is successful because post-judgment motions must still be filed within 30 days of the date found to be the date of first notice or actual knowledge of the judgment.

Dharma and Hahn divorced.  The trial court entered a final decree. Dharma appealed the trial court division of property; primarily, an interest in her medical practice.  Hahn argued that she accepted the benefits of the decree by selling a related entity and encumbering the practice’s assets, and the Fifth Court agreed, finding that she “exercised control over substantial assets she received in the trial court’s property division.”  The Court rejected an argument that the “acceptance of benefits” doctrine did not apply, based on her view of what would likely happen on remand, because that did not establish an “unquestionable” right as required by the limits on that doctrine.  In re S.B.H., No. 05-14-00585-CV (Feb. 5, 2016) (mem. op.)

For over a decade, Sun Tec Computer has been tied up in litigation with its officers and shareholders in Tarrant County. At least one of those former officers formed Tax Debt Acquisition Company and used it to purchase an unpaid judgment against Sun Tec, then filed an application for a turnover order in Dallas County to enforce the judgment. The turnover order was not appealed, and the receiver auctioned off Sun Tec’s claims against the Tarrant County litigants to TDAC. That act of legal jujitsu meant that Sun Tec could no longer proceed with its claims against the shareholders and officers. Sun Tec filed a new suit for a declaratory judgment that the turnover order and the sale of its claims were invalid, but the trial court granted summary judgment for the defendants. The Court of Appeals affirmed, holding that the declaratory judgment was an invalid collateral attack on the turnover order, and that the order itself was not void.

Sun Tec Computer, Inc. v. Recovar Group, LLC, No. 05-14-00257-CV

A guarantor ignored the efforts of a court-appointed receiver to collect on an agreed judgment and subsequent turnover orders. The debtor eventually paid the judgment, but Frost Bank sought recovery of additional attorney fees incurred in enforcing the judgment. The trial court awarded $160,000 in attorney fees and approved the receiver’s fee of $129,000. The Court of Appeals reversed as to the attorney fees, holding that fees could not be recovered based on the contractual guarantee because the bank’s claims under that instrument were merged with and extinguished by the final judgment. Nor could post-judgment attorney fees be awarded under the turnover statute because the defendant had actually paid the judgment. However, the trial court did not abuse its discretion in approving the receiver’s fee — calculated as 10% of the sale proceeds from the defendant’s stock — as the court had conducted a hearing and determined that the fee was fair, reasonable, and necessary.

Evans v. Frost Nat’l Bank, No. 05-12-01491

After obtaining a judgment against the guarantor of a $250,000 debt, plaintiff Elexis Rice sought a turnover order for certain intangible items of property, including internet domain names and website registrations using the name “cre8stone.” Cre8 International — which was not the judgment debtor — appeared in court to contest the turnover, contending that the domains were its own property. The trial court concluded otherwise, and the Court of Appeals affirmed that aspect of the turnover order. Although a trial court cannot ordinarily adjudicate third parties’ ownership rights in a turnover proceeding, the appearance of that third party in court rendered it subject to the trial court’s ruling on the matter. However, Cre8 managed to retain its email addresses and telephone number, as there was no evidence in the record showing that they were actually owed by the judgment debtor.

Cre8 Int’l, LLC v. Rice, No. 05-14-00377-CV

Sign Effects Sign Company (the redundancy is sic) obtained a $22,000 default judgment in Ohia against SignWarehouse.com. Six years later, SESC sought to domesticate that judgment in Texas. SignWarehouse argued that the Ohio judgment was invalid because the company was not subject to personal jurisdiction in that state. The trial court and the Dallas Court of Appeals agreed. Relying on Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005), the Court of Appeals held that simply shipping purchased good to another state was insufficient to establish minimum contacts for specific personal jurisdiction, particularly where the parties’ contract specified that venue for any dispute was to be in Grayson County.

Sign Effects Sign Co., LLC v. SignWarehouse.com, No. 05-12-01301-CV

In this memorandum opinion on an attempt to satisfy a judgment, the Court of Appeals held that the judgment creditor could obtain the income paid to appellant, an attorney, by his law firm pursuant to a turnover order issued by the trial court.  Although the appellant argued that this income was “exempt” under the relevant statute because he essentially acted as an independent contractor, the Court rejected this argument given that the appellant failed to offer any evidence concerning right of control.

Karlseng v. Wells Fargo, N.A.

Lorrie Smith filed suit for judicial foreclosure of a judgment lien against three lots in a Frisco subdivision. Smith had obtained her judgment against Shaddock Builders & Developers, and she recorded an abstract of the judgment on July 15, 2010. Two years earlier, Shaddock had acquired the three lots and immediately conveyed them to another company, Basin, Ltd. The conveyance from Shaddock to Basin was recorded, but the original sale to Shaddock went unrecorded until the seller corrected its “oversight” exactly one day before Smith recorded her judgment lien. Shortly thereafter, Basin conveyed the lots to Sumeer Homes, which built houses and sold the lots to the current homeowners. Each of those subsequent transactions was recorded. Seeking to foreclose on the lots in order to collect on her judgment against Shaddock, Smith sued the homebuilder, the homeowners, their mortgage lenders, and the title company. The defendants moved for and obtained summary judgment against Smith.

On appeal, Smith argued that the conveyance to Shaddock had been fraudulently backdated, and that it had really been filed the day after she recorded her judgment lien. According to Smith, that meant that legal title to the property had not been transferred to Shaddock until after she filed her lien, therfore making the three lots subject to her claim. The court of appeals rejected that argument. Although “legal title” to property serves as evidence of ownership, it does not constitute full and complete title to the property. What really matters when it comes to a judgment creditor’s lien is equitable title to the property, which passes to the purchaser when it pays the purchase price and fulfills the obligations of the contract of sale. In this case, Shaddock had acquired equitable title to the lots three years before Smith recorded her lien, and Shaddock had immediately transferred that title to Basin. Equitable title is a complete defense against the lien of a judgment creditor. Because Basin had acquired equitable title long before Smith acquired her judgment against Shaddock, that title subsequently passed to Sumeer Homes and the subsequent homebuyers free and clear of Smith’s judgment judgment against Shaddock. Nor did Shaddock hold “legal title” to the three lots on the day Smith recorded her lien. The summary judgment evidence showed that the original seller had recorded the sale the day before, and because Shaddock had conveyed the property to Basin by warranty title two years earlier, legal title to the property passed instantly to Basin when the sale to Shaddock was finally recorded. The court of appeals therefore affirmed the trial court’s grant of summary judgment.

Smith v. Sumeer Homes, Inc., No. 05-11-01632-CV