in Re Jon Anderson, Robert Boszko, Paula Willuweit, and Anderson and Associates P.C.

Opinion issued August 20, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-20-00123-CV
———————————
IN RE JON ANDERSON, ROBERT BOSZKO, PAULA WILLUWEIT, AND
ANDERSON AND ASSOCIATES P.C., Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Jon Anderson, Robert Boszko, Paula Willuweit, and Anderson and Associates

P.C. (collectively, the “Relators”) have filed a petition for writ of mandamus

asserting that (1) the trial court’s plenary power in the underlying case expired thirty

days after issuing a final judgment on December 11, 2018 and (2) orders and

proceedings conducted after the expiration of plenary power are void. Relators
request that our Court compel the trial court to close the underlying case and to

conduct no further proceedings in the case.1 We conditionally grant the petition.

Background

On June 19, 2018, Michael Berry (“Berry”), acting pro se, filed the underlying

suit against his ex-wife Michelle Berry (“Michelle”), Bethany Gerlach Arnold and

the Law Office of Bethany G. Arnold (collectively, “Arnold”), and Relators. On

October 18, 2018, Arnold filed a motion to dismiss under the Texas Citizens

Participation Act. See TEX. CIV. PRAC. & REM. CODE § 27.003. On October 25, 2018,

Relators filed a motion to dismiss under Rule 91a of the Texas Rules of Civil

Procedure. See TEX. R. CIV. P. 91a (entitled “Dismissal of Baseless Causes of

Action”).

The trial court granted Arnold’s motion to dismiss on November 8, 2018,

finding that “the legal action was brought to deter or prevent the Defendants from

exercising their constitutional rights and was brought for an improper purpose,

including to harass, cause unnecessary delay, or increase the cost of litigation.” The

order contains finality language stating that “This order is intended to and does

1
The underlying case is Michael R. Berry v. Michele S. Berry, Bethany Gerlach
Arnold, Jon Anderson, Robert Boszko, Paula Willuweit, Anderson and
Associates P.C., and Other Unknown Defendants, cause number 2018-40901,
pending in the 270th District Court of Harris County, Texas, the Honorable
Dedra Davis presiding.
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dispose of all parties and all issues and is final and appealable.” On November 30,

2018, Berry filed a motion to vacate the order granting Arnold’s motion to dismiss.

On December 11, 2018, the trial court signed an order granting Relators’ Rule

91a motion to dismiss all of Berry’s claims against them in the suit.2 Although the

dismissal order did not address Berry’s pending claims against Michelle, the order

concluded with the following finality statement: “This is a final and appealable

judgment which disposes of all parties and claims in this lawsuit.” Berry did not file

any post-judgment motions or an appeal regarding the dismissal order.

Because the trial court’s docket continued to reflect that the case was active,

Relators filed letters with the trial court on March 29 and April 1, 2019, requesting

that the court “cancel all settings” and designate the case as “closed.” Relators

asserted that the December 11, 2018 dismissal order was a final judgment, no post-

judgment motions were filed extending the court’s plenary power, and the trial court

lost plenary power to act in the case thirty days after the judgment was signed.

2
To the extent that the November 8, 2018 order granting Arnold’s motion to
dismiss was a final judgment, Berry’s timely motion to vacate the order
extended the trial court’s plenary power, thereby allowing the trial court to
consider and rule on Relators’ Rule 91a Motion to Dismiss. See TEX. R. CIV.
P. 329b(a).

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 On December 13, 2019, Berry filed a motion for default judgment against

Michelle.3 Relators filed additional letters on January 20 and February 4, 2020

further arguing that the dismissal order was final and the court lost plenary power to

act in the case. Berry filed letters responding that the dismissal order was not final

because it only pertained to his claims against Relators and did not address his claims

against Michelle.

On February 7, 2020, the trial court signed an order holding that the

underlying case is active and that the court has plenary power over the matter. In its

order, the trial court concluded that, despite the dismissal order’s finality language,

the order is not a final judgment because Michelle remains an active defendant in

the lawsuit. The order reads as follows:

Before the court today, February 05, 2020, was a status conference to
determine whether or not Michael Berry’s claims against all defendants
had been disposed, and whether or not the court still has power over
this case. After reviewing the case file the following was determined,
the original petition names several defendants: Michele Berry; Bethany
G Arnold; Law Office of Bethany G. Arnold; Jonathon G. Anderson;
Anderson and Associates P.C.; Robert Willuweit and other unknown
defendants. On 11/08/2019, Bethany G. Arnold and the Law office of
Bethany G. Arnold where dismissed under the TCPA Act. Defendants
Rule 91A motion on behalf of Jon Anderson, Robert Boszko, Paula
Willuweit, and Anderson and Associates P.C. was granted on
12/06/2019. Although this order says this is a final and appealable
judgment it leaves one remaining active defendant Michele Berry.

3
Although Relators assert in their mandamus petition that the issue of the trial
court’s plenary power was discussed at hearing on the motion for default
judgment held on January 14, 2020, a copy of the hearing transcript has not
been included in the mandamus record.
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 The court finds that this case is active, and that the court still has power
over this matter

This mandamus petition followed. Berry filed a response to the petition (1) asserting

that the trial court has plenary power because the dismissal order’s finality language

did not render the order a final judgment when other claims remained pending and

(2) requesting sanctions against Relators under Texas Rule of Appellate Procedure

52.11 for filing the petition.

Standard of Review

Mandamus generally issues to correct a clear abuse of discretion or the

violation of a duty imposed by law when there is no other adequate remedy at law.

In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).

Mandamus is also proper, however, if a trial court issues an order beyond its

jurisdiction because such an order is void. In re Sw. Bell Tel. Co., 35 S.W.3d 602,

605 (Tex. 2000) (orig. proceeding). Thus, mandamus is appropriate when a trial

court issues an order after its plenary power has expired. In re Daredia, 317 S.W.3d

247, 250 (Tex. 2010) (orig. proceeding) (per curiam); In re Brookshire Grocery Co.,

250 S.W.3d 66, 68–69 (Tex. 2008) (orig. proceeding). When an order is void,

relators need not show absence of an adequate appellate remedy to obtain mandamus

relief. In re Sw. Bell Tel. Co., 35 S.W.3d at 605.

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 Analysis

Relators assert that they are entitled to mandamus relief because (1) the

December 11, 2019 dismissal order is a final judgment; and (2) the trial court’s

plenary power expired thirty days after the order was signed and thus any action

taken after that time, including the trial court’s February 7, 2020 order holding that

the case is still active, is void. We agree.

The December 11, 2018 Dismissal Order is a Final Judgment

“[W]hen there has not been a conventional trial on the merits, an order or

judgment is not final for purposes of appeal unless it actually disposes of every

pending claim and party or unless it clearly and unequivocally states that it finally

disposes of all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191,

205 (Tex. 2001) (emphasis added); see also In re Elizondo, 544 S.W.3d 824, 827–

28 (Tex. 2018) (orig. proceeding) (quoting same). Thus, the Texas Supreme Court

announced two tests to determine the finality of orders issued before the conclusion

of a trial. Lehmann, 39 S.W.3d at 200–06. First, an order can be final if it includes a

clean and unequivocal finality phrase, such as, “This judgment finally disposes of

all parties and claims and is appealable.” Id. at 206. Second, an order can be final if

its effect is to dispose of all claims and parties before the trial court. Id. at 205.

The December 11, 2018 dismissal order satisfies the first test for finality

because it includes finality language stating, “This is a final and appealable judgment

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which disposes of all parties and claims in this lawsuit.” Similar language has been

found to be a clear and unequivocal statement of finality. See Lehmann, 39 S.W.3d

at 206 (“A statement like, ‘This judgment finally disposes of all parties and all claims

and is appealable,’ would leave no doubt about the court’s intention.”); see In re

Elizondo, 544 S.W.3d at 828-29 (holding that order’s finality phrase—“This

judgment is final, disposes of all claims and all parties, and is appealable”—was

clear and unambiguous, rendering order final for purposes of appeal); In re Daredia,

317 S.W.3d at 248–49 (holding that following language was “clear enough” to

indicate finality: “All relief not expressly granted herein is denied. This judgment

disposes of all parties and all claims in this cause of action and is therefore FINAL.”).

Despite the dismissal order’s clear and unequivocal finality language, the trial

court concluded that the order was not final because claims remained pending

against Michelle. As discussed below, the trial court’s conclusion is contrary to

controlling authority.

In Lehmann, the Supreme Court of Texas explained that “if the language of

the order is clear and unequivocal, it must be given effect despite any other

indications that one or more parties did not intend for the judgment to be final.”

Lehmann, 39 S.W.3d at 206. “[T]he language of an order or judgment can make it

final, even though it should have been interlocutory, if that language expressly

disposes of all claims and all parties.” Id. at 200. If the order contains clear and

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unequivocal finality language, as it does in this case, then an appellate court may not

look to the record in determining whether the judgment was final and appealable.

See In re Elizondo, 544 S.W.3d at 827–28; see also Lehmann, 39 S.W.3d at 206.

“Instead, it must take the order at face value.” In re Elizondo, 544 S.W.3d at 828.

On the other hand, if an order granting a dispositive motion does not clearly and

unequivocally dispose of all claims and parties, then an appellate court can review

the record to determine whether the order nevertheless actually disposed of them all.

See Elizondo, 544 S.W.3d. at 826; Lehmann, 39 S.W.3d at 205–06.

Although the December 11, 2018 order only referenced dismissal of claims

against Relators and does not mention Michelle, Lehmann holds that the inclusion

of clear and unequivocal finality language renders the judgment final “even though

it should have been interlocutory.” Id. at 200. The Texas Supreme Court’s

subsequent application of Lehmann in Daredia, a case similarly involving a

judgment that included finality language but did not mention another defendant, is

particularly instructive. See In re Daredia, 317 S.W.3d 247.

In Daredia, American Express sued Daredia and Map Wireless. 317 S.W.3d

at 248. Daredia answered the lawsuit, but Map Wireless did not, and American

Express moved for default judgment against Map Wireless. Id. The trial court signed

the default judgment submitted by American Express, which concluded with two

sentences stating, “All relief not expressly granted herein is denied. This judgment

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disposes of all parties and all claims in this cause of action and is therefore FINAL.”

Id. More than fifteen months later, American Express moved for judgment nunc pro

tunc to correct “typographical errors” in the judgment so that the case could proceed

against Daredia. Id. Daredia responded that the judgment was final and the trial court

had lost plenary power thirty days after the judgment was signed. The Supreme

Court agreed and granted Daredia’s petition for writ of mandamus. Id. The Supreme

Court explained that the finality language rendered the judgment final and “holding

that the failure to mention Daredia creates an ambiguity that makes the judgment

interlocutory is contradicted by Lehmann.” Id. at 249. The Supreme Court further

explained:

[T]he lack of any basis for rendering judgment against Daredia did not
preclude dismissing him from the case. Even if dismissal was
inadvertent, as American Express insists, it was nonetheless
unequivocal, and therefore effective. American Express complains that
the trial court never made a substantive disposition of its claims against
Daredia, but dismissal is not a ruling on the merits. We conclude that
the judgment by its clear terms disposed of all claims and parties and
was therefore final.

Id. Because the dismissal was final, the Supreme Court concluded “that the trial

court clearly abused its discretion in setting aside a judgment after its plenary power

expired.” Id. at 250.

For the reasons explained in Daredia, the trial court’ holding in this case that,

despite clear and unequivocal finality language, the December 11, 2018 dismissal

order was not final because it failed to mention Michelle similarly conflicts with

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Lehmann. Moreover, the Texas Supreme Court recently addressed the same

misapplication of Lehmann’s finality rule and reiterated its holding that reviewing

courts cannot consider the record to determine finality when an order provides a

clear and unequivocal statement of finality:

[Appellant] argues that the court of appeals should not have analyzed
the record for evidence of finality after the trial court provided a clear
and unequivocal statement that it had intended the appealed-from order
to be a final judgment. We agree. We have previously held that a
judgment is final either if “it actually disposes of every pending claim
and party” or “it clearly and unequivocally states that it finally disposes
of all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d
191, 205 (Tex. 2001). The court of appeals mistakenly read Lehmann
to require record evidence of finality and an unequivocal expression of
finality. Young, 566 S.W.3d at 833. But this approach “would distill
Lehmann’s joint tests into a simple rule: when there has not been a
conventional trial on the merits, a court must look to the record to
determine whether the judgment is final. That is not Lehmann’s rule.”
In re Elizondo, 544 S.W.3d 824, 828 (Tex. 2018) (per curiam). Instead,
a clear and unequivocal statement of finality must be “given effect”
even if review of the record would undermine finality. Lehmann, 39
S.W.3d at 206.
Bella Palma, LLC v. Young, No. 19-0204, 2020 WL 1898543, at *2 (Tex. Apr. 17,

2020) (per curiam).

The arguments in Berry’s response and motion for sanctions lack merit. First,

Berry argues that the dismissal order’s inclusion of “boilerplate” finality language

cannot render the order final as to all parties because the order only mentions

Relators and no other defendants. As discussed above, this argument has been

soundly rejected by controlling authority. Second, Berry argues that inclusion of

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finality language in the December 11, 2018 order dismissing Relators cannot render

the order final because similar language appeared in the November 8, 2018 order

dismissing Arnold, and the trial court continued to act after that order was signed.

But Berry filed a motion to vacate the November 8, 2018 order, extending the trial

court’s plenary power beyond thirty days from its signing. No similar motion was

filed extending plenary power after the December 18, 2018 dismissal order. Finally,

Berry asserts that “[t]he Realtors don’t have standing in this matter if the Rule 91a

Motion to Dismiss is in fact valid and not flawed.” Although Relators were

dismissed from the underlying case, they have standing to challenge the trial court’s

order allowing the case to proceed against Michelle because the order directly

undermines the finality of Relators’ dismissal. If the December 11, 2018 order is a

final judgment, as Relators assert it is, then it is no longer assailable because Berry

never appealed. Conversely, if the December 11, 2018 order is interlocutory, as

Berry asserts and the trial court held, then Berry may still appeal the dismissal after

a final judgment is entered.

Consistent with Lehmann and its progeny, we conclude that (1) the December

11, 2019 dismissal order’s clear and unequivocal finality language rendered the

order final; and (2) the trial court erred in holding that the order was not final due to

the order not addressing claims pending against Michelle.

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 The Trial Court’s Plenary Power Expired

Because the dismissal order was final and Berry did not file any post-judgment

motions extending plenary power, the trial court’s plenary power expired thirty days

after the order was signed on December 11, 2018. See TEX. R. CIV. P. 329b(d) (“The

trial court, regardless of whether an appeal has been perfected, has plenary power to

grant a new trial or to vacate, modify, correct, or reform the judgment within thirty

days after the judgment is signed.”). We therefore conclude that the trial court lacks

plenary power to act in the underlying case. See also In re Elizondo, 544 S.W.3d at

829 (holding trial court “must correct judicial errors within thirty days of judgment

or not at all”); In re Daredia, 317 S.W.3d at 248 (concluding once judgment is final

and court loses plenary power, court has no authority to act in the lawsuit); Jefferson

v. Pirtle, 14-17-00817-CV, 2018 WL 6494244, at *1 (Tex. App.—Houston [14th

Dist.] 2018, no pet.) (mem. op.) (“The parties did not file a post-trial motion that had

the effect of extending appellate deadlines. Thus, the trial court lost plenary power

on June 8, 2016, thirty days after signing the final judgment.”).

The trial court’s February 7, 2020 order holding that the case is active and

allowing Berry’s suit to proceed against Michelle is void for having been issued after

plenary power expired. Because the trial court’s order is void, Relators need not

demonstrate that they lack an adequate remedy by appeal to be entitled to mandamus

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relief. See In re Sw. Bell Tel. Co., 35 S.W.3d at 605; see also In re Elizondo, 544

S.W.3d at 829, In re Daredia, 317 S.W.3d at 250.

Conclusion

For the foregoing reasons, we conclude that the trial court abused its discretion

in issuing an order continuing the case after plenary power expired. We conditionally

grant the writ of mandamus and direct the trial court to (1) vacate its February 7,

2020 order and, if necessary, vacate any other order rendered after expiration of its

plenary power; (2) take no further action in the underlying case; and (3) designate

the case as closed. We are confident that the trial court will comply, and our writ

will issue only if it does not. Berry’s request for sanctions is denied. We dismiss any

pending motions as moot.

Gordon Goodman
Justice

Panel consists of Justices Goodman, Hightower, and Countiss.

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