Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed July 11, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-06-00203-CV
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IN RE SUNIL DUPTE, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
Relator Sunil Dupte seeks a writ of mandamus ordering respondent, the Honorable Kenneth P. Wise, presiding judge of the 152nd Judicial District Court of Harris County, Texas, to vacate his order of December 30, 2005, granting a motion to set aside a judgment entered on May 18, 2005 in the underlying case. For the reasons discussed below, we conditionally grant the writ.
Dupte filed a premises liability action against real parties in interest, Julio A. Gonzalez and Maria C. Gonzalez, their corporation, Taquerias Tepatitlan, Inc. (collectively, the “Gonzalezes”), and Paula S. Vargas, d/b/a Taqueria Tepatitlan #12 (“Vargas”). On May 18, 2005, after a bench trial, two judgments were signed. The first, titled “Interlocutory Judgment,” granted Dupte judgment on his pleadings as to liability, referenced previous orders striking the pleadings of the real parties, and recited that Dupte would recover from the real parties the amount proven at a trial on damages. The second judgment, titled “Final Judgment,” took notice of the previously entered interlocutory judgments, establishing the real parties’ liability, and awarded Dupte actual and exemplary damages, post-judgment interest, and costs of court.
The Gonzalezes filed a motion for new trial on June 17, 2005, which was never ruled on, and in October of 2005, they filed a motion to set aside the May 18 Final Judgment. The trial court granted this motion on December 30, 2005, and vacated its previous judgment. Dupte seeks relief from the trial court’s December 30 order, arguing it is void because the trial court’s plenary power had expired. See Tex. R. Civ. P. 329b(c), (e).
Mandamus relief is available if a trial court issues an order after its plenary power has expired. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000). If a motion for new trial is not determined by a written order signed within seventy-five days after the judgment was signed, the motion is overruled by operation of law. Tex. R. Civ. P. 329b(c). The trial court retains its plenary power to grant a new trial or vacate a judgment for thirty days after the motion is overruled. See Tex. R. Civ. P. 329b(e). Following that period, a judgment cannot be set aside by the trial court “except by bill of review . . . .” Tex. R. Civ. P. 329b(f).
In this case, the Gonzalezes’ motion for new trial was overruled by operation of law on August 1, 2005, and the trial court’s plenary power expired thirty days later, on August 31. See Tex. R. Civ. P. 329b(e). However, the real parties contend that the trial court retained jurisdiction to vacate the Final Judgment because it was actually interlocutory in that it awarded only damages without liability determinations and did not dispose of Dupte’s negligence claims.
Although a judgment following a trial on the merits is presumed final, there is no such presumption of finality following a summary judgment or default judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005). As to those, a judgment is final if it either actually disposes of all claims and parties or states with unmistakable clarity that it is a final judgment as to all claims and parties. Id. at 830. An intent to finally dispose of the case must be unequivocally expressed in the words of the order itself, and a statement like “This judgment finally disposes of all parties and claims and is appealable,” leaves no doubt about the court’s intention. Id.
In this case, the Final Judgment is entitled “Final Judgment,” and contains the foregoing statement. It also states that “[a]ll relief requested in this case and not expressly granted is denied.” An intent to finally dispose of the case could hardly have been stated more clearly or unequivocally.[1] Therefore, the trial court’s December 30, 2005, order vacating the May 18, 2005 Final Judgment was signed outside the court’s plenary power and is void. Accordingly, without hearing oral argument, we conditionally grant[2] the writ of mandamus and order the trial court to vacate its December 30, 2005 order.
/s/ Richard H. Edelman
Justice
Petition Conditionally Granted and Memorandum Opinion filed July 11, 2006.
Panel consists of Justices Anderson, Edelman, and Frost.
[1]The Gonzalezes’ motion for new trial following the Final Judgment expressly describes it as a final judgment.
[2]The writ will issue only if the trial court fails to act in accordance with this opinion.