in Re Julie Fischer

Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 21, 2011. In The Fourteenth Court of Appeals ____________ NO. 14-11-00482-CV ____________ IN RE JULIE FISCHER, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 234th District Court Harris County, Texas Trial Court Cause No. 2006-48780 M E M O R A N D U M   O P I N I O N On June 3, 2011, relator Julie Fischer filed a petition for writ of mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. Fischer complains that respondent, the Honorable Reece Rondon, presiding judge of the 234th District Court of Harris County, has granted a motion for new trial outside of his plenary power. In four issues, Fischer asserts that the trial court signed a final default judgment on October 17, 2007, or alternatively, on August 18, 2008, and the court lacked jurisdiction to grant a new trial on April 27, 2011. The real party in interest, Skin for Life, a Division of Lifeline Medical, Inc. (“SFL”), has filed a response to the petition. In its response, SFL asserts that the default judgment was not final and the trial court retains plenary jurisdiction. We agree, and accordingly, deny the requested relief. FACTUAL BACKGROUND On April 1, 2005, SFL filed a collection suit against Fischer in county court alleging that Fischer breached a lease agreement for a microdermabrasion machine for her business, Utopia Day Spa. On August 9, 2006, while the county court suit was pending, Fischer filed the underlying suit against SFL and its president, Tushar Shah.[1] She alleged breach of contract and claims for damages arising from her arrest after the leased equipment was not returned and the resulting loss of value of her business. On April 18, 2007, the trial court granted Fischer’s motion to consolidate the two cases in district court. On June 25, 2007, in response to a dismissal notice, Fischer moved for a default judgment against SFL, and the trial court signed an order granting the motion on October 18, 2007. The order did not address Fischer’s claims against Shah or SFL’s claims against Fischer. Acknowledging that the first order was interlocutory, Fischer moved to sever her claims against Shah on July 18, 2008, but the motion was not granted. Fischer then filed a second motion for default judgment against Shah, which the trial court granted in an order signed on August 18, 2008. The August 18, 2008 default judgment awarded Fischer damages and attorney’s fees totaling $1,640,000. The order failed to address SFL’s claims against Fischer. SFL asserts that it was not served with the default motions or orders, and it understood that both actions would be dismissed. After SFL learned of the default judgment, it filed an answer and a motion for new trial on September 17, 2010. The trial court signed an order granting a new trial on April 27, 2011. Fischer then filed a motion to clarify the court’s order. On May 17, 2011, the trial court signed a new order granting a new trial, and it withdrew the previous order. In its May 17, 2011 order, the court found as follows: 1. This Court retains jurisdiction over this matter because the Default Judgment was not final or supported by the evidence, and the judgment failed to resolve all claims and parties, and it was not the conscious intent of the Court for the judgment to be final; and 2. In equity, Defendant is entitled to a new trial. Due process was not observed in 2007 and prior in obtaining the ex parte default judgment because service on Defendant was never properly obtained on Defendant, and the default was initially pursued without obtaining proper service, and proper procedure and due process was not followed in seeking consolidation. Defendant Skin for Life has met the requirements set forth in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). The Court finds that (a) Defendant or Defendant's counsel at the time of the filing did not act intentionally or with conscious indifference in failing to file an Answer, (b) Defendant has a meritorious defense to Plaintiffs case, and (c) granting this Motion would occasion no undue delay or otherwise work an injury to Plaintiff. 3. The Court’s April 27, 2011 order granting Skin for Life's motion for new trial is hereby withdrawn in its entirety and replaced with this one. It is, therefore, ORDERED that a new trial be held in the interest of justice and fairness. MANDAMUS STANDARD Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles, when there is no other adequate remedy by law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Mandamus is appropriate without a showing that an appeal is inadequate if a trial court issues an order beyond its jurisdiction or after its plenary power has expired. See In re Lovito-Nelson, 278 S.W.3d 773, 776 (Tex. 2009). PLENARY POWER A trial court has plenary power over its judgment until it becomes final. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). A judgment is not final merely because it states that it is final; it must actually dispose of all parties and claims or demonstrate an unequivocal intent to dispose of all parties and claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). We may review the record in making our determination as to the finality of the judgment. Id. at 205-06. If the record reveals the presence of other parties or claims not mentioned in the order, the order is not final. Id. at 206. The default judgment did not reference the claims in the consolidated county court action. Therefore, the judgment does not dispose of all parties and claims or demonstrate a clear intent to do so. See In re RSL Funding, LLC, No. 14-10-01111-CV, 2010 WL4685385 (Tex. App.—Houston [14th Dist.] Nov. 18, 2010, orig. proceeding) (mem. op.) [mand. denied Feb. 25, 2011]. We conclude that the trial court retained plenary power to grant SFL’s motion for new trial. RULE 329b Fischer’s argument that the motion for new trial was long ago overruled by operation of law is also unavailing. See Tex. R. Civ. P. 329b(c) (stating motion for new trial is overruled by operation of law 75 days after filing if no ruling has issued). Rule 329b applies to final judgments, rather than an interlocutory order, as in this case. See Nash v. Harris County, 63 S.W.3d 415, 416 (Tex. 2001) (recognizing that motion for new trial would have been denied by operation of law had the court’s order been final); see also Bradley v. Peters, No. 01-07-00081-CV, 2007 WL 4284659, *2 (Tex. App.—Houston [1st Dist.] Dec. 6, 2007, no pet.) (mem. op.) (recognizing that Rule 329b operates to overrule a motion for new trial 75 days after a final judgment is signed). SANCTIONS In its response, SFL requests that this court assess sanctions against Fischer. See Tex. R. App. P. 52.11. SFL argues that Fischer failed to cite to the record to support the factual statements in her mandamus petition, and SFL also cites numerous omissions from the mandamus record. Rule 52.11 permits an appellate court to assess sanctions on a party or attorney who is not acting in good faith, as shown by any of the following: (a) filing a petition that is clearly groundless; (b) bringing the petition solely for delay of an underlying proceeding; (c) grossly misstating or omitting an obviously important and material fact in the petition or response; or (d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents. Id. “An appellate court should exercise the discretion afforded by Rule 52.11 with caution and only after careful deliberation.” In re Cooper, 320 S.W.3d 905, 911 (Tex. App.—Texarkana 2010, orig. proceeding); see also In re Lerma, 144 S.W.3d 21, 27 (Tex. App.—El Paso 2004, orig. proceeding). We decline to exercise our discretion under Rule 52.11 to assess sanctions against Fischer. Although Fischer did not include copies of many of the pleadings and other filings that SFL provided in its supplemental record, Fischer provided a copy of SFL’s motion for new trial, which set forth a detailed discussion of the history of the case. We also note that Fischer included with her mandamus petition a printout from the Harris County District Clerk of the case’s docket, which contains a list of filings and activity from the case’s initiation in 2006 to the granting of the new trial in 2011. We do not find a gross misstatement of facts warranting sanctions. Fischer’s issues are overruled and the petition for writ of mandamus is denied. PER CURIAM Panel consists of Chief Justice Hedges and Justices Anderson and Boyce. [1] Shah has filed a special appearance, which remains pending before the trial court, and he is not a party to this proceeding.