NUMBER 13-16-00632-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE LORETTA YOUNG CANTU
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez1
Relator, Loretta Young Cantu, filed a petition for writ of mandamus in the above
cause on November 21, 2016. Through this original proceeding, relator seeks to compel
the trial court to vacate an order setting a hearing on a motion for summary judgment filed
by the real party in interest, Rolando Cantu. Relator contends that this order is void
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
because it was issued after the expiration of the trial court’s plenary power. In essence,
relator contends that a summary judgment rendered previously in the case was the final
judgment in the underlying cause. We conclude that the earlier summary judgment was
interlocutory, and accordingly, we deny the petition for writ of mandamus.2
I. BACKGROUND
Rolando Cantu brought suit against relator and Horacio Cantu Jr. According to the
facts alleged in Rolando’s first amended petition, Rolando served as receiver for
Preferred Ambulance, Inc. (Preferred Ambulance), a company owned and operated by
relator and Horacio. Relator and Horacio divorced, and the divorce decree divided the
assets of Preferred Ambulance equally between them. The final decree of divorce
incorporated an “Agreement Incident to Divorce,” which provided that relator and Horacio
were jointly responsible for the federal income taxes for Preferred Ambulance for previous
years. In conjunction with the divorce, relator and Horacio also entered into a “Settlement
Agreement” which provided for global indemnification of relator, Horacio, and Rolando as
the receiver for Preferred Ambulance. According to Rolando’s petition, “[a]s part of the
Final Decree of Divorce, . . . [Rolando] was indemnified against any claims whatsoever
by . . . [relator and Horacio].”
Further, according to the petition, Preferred Ambulance failed to file and pay its
payroll taxes to the United States Treasury for the tax period ending June 30, 2008.
Rolando alleged that the Internal Revenue Service “has made a demand for Preferred
Ambulance, Inc.’s June 30, 2008 payroll tax liability” for an outstanding balance of
2 This petition for writ of mandamus arises from trial court cause number C-786-11-A in the 92nd
District Court of Hidalgo County, Texas, and the Honorable Luis M. Singleterry is the respondent. See
generally TEX. R. APP. P. 52.2. Horacio Cantu Jr., although named as a party in the pleadings below, did
not file a response or other pleading in this original proceeding.
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$137,503.75. Rolando asserted that he paid this amount to the United States Treasury
in response to its demand and sought reimbursement from relator and Horacio.
Rolando thus brought claims against relator and Horacio for declaratory judgment,
breach of contract, quantum meruit, and promissory estoppel. He sought declaratory
relief and requested that the trial court find that he is “indemnified for all sums paid to the
United States Treasury and Internal Revenue Service as provided for in the Agreement
Incident to Divorce.” Rolando sought indemnification through terms of the Agreement
Incident to Divorce and the Settlement Agreement on grounds he was a “proper third
party beneficiary with rights to enforce the agreement of indemnification.” He argued that
he was entitled to recovery for the amounts paid as reimbursement. Finally, Rolando
asserted that he was entitled to reasonable and necessary attorney’s fees and costs
under sections 37.009 and 38.001 of the Texas Civil Practice and Remedies Code. See
TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West, Westlaw through 2015 R.S.) (stating
that the trial court “may” award costs and “reasonable and necessary attorney’s fees as
are equitable and just” in declaratory judgment actions); Id. § 38.001 (West, Westlaw
through 2015 R.S.) (providing that a person may recover attorney’s fees for various
claims, including a claim based on “an oral or written contract”). The petition stated that
the trial court had previously granted a declaratory judgment and attorney’s fees in
Rolando’s favor against both relator and Horacio; however, the trial court subsequently
granted relator’s motion for new trial. According to Rolando’s petition, the “Declaratory
Judgment remains in effect as to Horacio.” Relator answered the petition with a general
denial containing numerous affirmative defenses and several counterclaims.
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During subsequent litigation, Rolando filed a no-evidence motion for summary
judgment against relator arguing that he was entitled to summary judgment on relator’s
eighteen affirmative defenses and five counterclaims on the grounds that these defenses
and counterclaims lacked evidentiary support. He further requested attorney’s fees of
$15,000 and prejudgment interest. Relator filed an objection and response to Rolando’s
no-evidence motion for summary judgment. Rolando filed a response and objections to
relator’s evidence.
After a hearing, the trial court granted Rolando’s motion for summary judgment.
The trial court’s March 17, 2016 order on the motion for summary judgment states in its
entirety:
On the 9th day of February, 2016, the Court heard the Motion for No
Evidence Summary Judgment filed by Plaintiff/Counter-Defendant Rolando
Cantu and the response thereto filed by Loretta Young Cantu and the
Objections to Defendant’s Summary Judgment Evidence filed by
Plaintiff/Counter-Defendant. After having reviewed the pleadings and
hearing the argument of counsel, the Court finds that the Motion for No
Evidence Summary Judgment should be granted and hereby enters the
following Orders[.]
IT IS ORDERED that the Objections to Defendant’s Summary
Judgment Evidence filed by Plaintiff/Counter-Defendant are sustained.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
Motion for No Evidence Summary Judgment filed by Plaintiff/Counter-
Defendant Rolando Cantu is granted in all respects.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
the affirmative defenses asserted by Defendant/Counter-Plaintiff Loretta
Young Cantu, and listed below, are hereby denied with prejudice:
a. ratification;
b. waiver;
c. laches;
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d. statute of frauds;
e. pari delicto, wrongful acts/unlawful acts and unclean hands;
f. payment;
g. release;
h. res judicata;
i. estoppel;
j. estoppel in pais/equitable estoppel;
k. collateral estoppel;
l. judicial estoppel;
m. estoppel by contract;
n. quasi estoppel;
o. judicial admission;
p. offsets and credits;
q. failure to mitigate damages;
r. one satisfaction rule.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
counterclaims asserted by Defendant/Counter-Plaintiff Loretta Young
Cantu, and listed below, are hereby dismissed with prejudice:
a. unjust enrichment;
b. money had and received;
c. wrongful conversion;
d. breach of fiduciary duty;
e. exemplary damages.
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The summary judgment does not contain a conclusion paragraph following this
language. That same day, the District Clerk of Hidalgo County provided the following
notice to the parties:
In accordance with Rules of Civil Procedure 306(a)3; the clerk of the
court shall immediately give notice to the parties or their attorney of record
by first-class mail advising that the judgment or order was signed.
A final judgment, SUMMARY JUDGMENT SIGNED BY JUDGE:
LUIS M. SINGLETERRY was signed on 03/17/2016 and a copy may be
purchased for $1 per page at the district clerk’s office located at: Hidalgo
County Courthouse, 100 N. Closner, 1st Floor, Edinburg, Texas.
See TEX. R. CIV. P. 306a(3) (stating that the clerk of the court “shall immediately give
notice” when a “final judgment or other appealable order is signed”). Subsequently, in
May 2016, relator filed a no-evidence motion for summary judgment and a traditional
motion for summary judgment; however, the trial court clerk declined to set relator’s
summary judgment motions for hearing on grounds that the case had been concluded.
Relator alleges that she “relied upon the information from the docket entry, the court
clerk[,] and the Hidalgo County District Clerk’s Office that the case was no longer active
and took no further action.” However, in October 2016, Rolando thereafter filed a second
amended original petition and a traditional motion for summary judgment regarding his
claims against relator. The trial court set Rolando’s summary judgment motion for
hearing. Relator filed an objection to setting the motion for hearing on grounds that the
trial court lacked jurisdiction because its plenary power had expired. The trial court
nevertheless maintained the setting.
This original proceeding ensued. By two issues, relator contends that: (1) the trial
court abused its discretion by signing an order setting Rolando’s motion for summary
judgment for hearing after the trial court’s plenary power expired; and (2) mandamus relief
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is appropriate when the trial court issues a void order without the necessity of showing
that there is no adequate remedy by appeal. In support of her contention that the
summary judgment was final, relator relies on the March 17, 2016 order granting
summary judgment, the “final judgment” notice from the District Clerk, the trial court clerk’s
refusal to set her motions for hearing, and the “case summary” prepared at the time
summary judgment was granted which indicated that the case had been closed.
This Court requested and received a response to the petition for writ of mandamus
from Rolando. Rolando contends that the summary judgment was interlocutory and the
trial court maintains jurisdiction over the case.
II. STANDARD OF REVIEW
Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., L.P., 492 S.W.3d
300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct
a clear abuse of discretion when there is no adequate remedy by appeal. In re Christus
Santa Rosa Health Sys., 492 S.W.3d 276 (Tex. 2016) (orig. proceeding); In re Prudential
Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v.
Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). The relator bears the
burden of proving both of these requirements. In re H.E.B. Grocery Co., L.P., 492 S.W.3d
at 302; Walker, 827 S.W.2d at 840. An abuse of discretion occurs when a trial court’s
ruling is arbitrary and unreasonable or is made without regard for guiding legal principles
or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex.
2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).
Similarly, a trial court abuses its discretion when it fails to analyze or apply the law
correctly. In re Nationwide Ins. Co. of Am., 494 S.W.3d at 712; In re Sw. Bell Tel. Co.,
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226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding). We determine the adequacy of an
appellate remedy by balancing the benefits of mandamus review against the detriments.
In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential
Ins. Co. of Am., 148 S.W.3d at 136.
Mandamus relief is proper when the trial court issues a void order. See In re Sw.
Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Jacky, No. 01-16-
00236-CV, 2016 WL 4203421, at *3, __ S.W.3d __, __ (Tex. App.—Houston [1st Dist.]
Aug. 9, 2016, orig. proceeding); In re Flores, 111 S.W.3d 817, 818 (Tex. App.—Houston
[1st Dist.] 2003, orig. proceeding) (per curiam). Specifically as it concerns this case,
mandamus is proper if a trial court issues an order after its plenary power expires. In re
Sw. Bell Tel. Co., 35 S.W.3d at 605. Such an order is void and constitutes an abuse of
discretion. Id. Moreover, when a trial court has entered a void order, the relator need not
show that it lacks an adequate remedy by appeal, and mandamus relief is appropriate.
Id.; In re Jacky, 2016 WL 4203421.
III. APPLICABLE LAW
The issues raised in this original proceeding concern the trial court’s plenary power
and the finality of the trial court’s March 17, 2016 summary judgment order. A trial court
retains jurisdiction over a case for a minimum of thirty days after signing a final judgment.
TEX. R. CIV. P. 329b(d). During this time, the trial court has plenary power to change its
judgment. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex.
2000). Relator contends that the March 17, 2016 summary judgment is final and the trial
court’s plenary power expired thirty days after the judgment was signed.
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The Texas Supreme Court has held that a judgment issued without a conventional
trial is final for purposes of appeal only if either (1) it actually disposes of all claims and
parties then before the court, regardless of its language, or (2) it states with unmistakable
clarity that it is a final judgment as to all claims and all parties. Farm Bureau Cnty. Mut.
Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015); Lehmann v. Har–Con Corp., 39
S.W.3d 191, 192 (Tex. 2001); see Thai Xuan Vill. Condo. Ass’n, Inc. v. Hien Luu, No. 14-
15-00873-CV, 2016 WL 6887344, at *2, __ S.W.3d __, __ (Tex. App.—Houston [14th
Dist.] Nov. 22, 2016, no. pet. h.). The supreme court explained that “[a]n order does not
dispose of all claims and all parties merely because it is entitled ‘final’, or because the
word ‘final’ appears elsewhere in the order, or even because it awards costs.” Lehmann,
39 S.W.3d at 205; see Farm Bureau, 455 S.W.3d at 163. The inclusion of a “Mother
Hubbard clause,” such as the statement—“all relief not granted is denied”—or similar
words, does not indicate that a judgment rendered without a conventional trial is final for
purposes of appeal. Lehmann, 39 S.W.3d at 203–04. Rather, there must be some other
clear indication that the trial court intended the order to completely dispose of the entire
case. Farm Bureau, 455 S.W.3d at 163; Lehmann, 39 S.W.3d at 205.
As explained in Lehmann, “the 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.” Lehmann, 39 S.W.3d at 200. If the trial court’s intent to enter a
final judgment is “clear from the order, then the order is final and appealable, even though
the record does not provide an adequate basis for rendition of judgment.” Id. In that
case, “the judgment is final—erroneous, but final.” Id. In Lehmann, the Texas Supreme
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Court instructed appellate courts to review the record in the case and the language of the
order to determine whether the order is final. Id. at 205–06.
To construe a judgment, we look first and foremost to the text of the judgment as
written, and, if it is unambiguous, we must give effect to the literal language used. See,
e.g., Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003); In re Piatt Servs. Int’l, Inc.,
493 S.W.3d 276, 281 (Tex. App.—Austin 2016, no pet.). If the judgment is ambiguous,
we should look also to the record as an aid in interpreting it. Shanks, 110 S.W.3d at 447–
48. We do not read isolated words or phrases in a vacuum; rather, we are to construe
the judgment as a whole so as to harmonize and give effect to all of its provisions. Id.
Moreover, “one cannot divorce text from context” when construing written instruments, as
“[t]he meaning of words read in isolation is frequently contrary to the meaning of words
read contextually in light of what surrounds them.” In re Office of the Att’y Gen., 456
S.W.3d 153, 155–56 (Tex. 2015) (orig. proceeding) (explaining that this is the rule “[w]hen
construing statutes, or anything else”).
IV. ANALYSIS
Relator contends that the trial court abused its discretion by signing an order
setting Rolando’s motion for summary judgment for hearing after the trial court’s plenary
power expired. In contrast, Rolando contends that the March 17, 2016 summary
judgment was interlocutory and thus the trial court has retained jurisdiction over the
underlying case. Because there was no conventional trial on the merits and no statutory
right to appeal, we examine whether the judgment actually disposed of all claims and
parties before the court, regardless of its language. See Lehmann, 39 S.W.3d at 192.
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The summary judgment expressly resolves relator’s affirmative defenses and her
counterclaims; however it does not address Rolando’s affirmative claims for relief against
relator or Rolando’s claims against Horacio, thus the summary judgment did not dispose
of all claims and parties before the trial court. See id. Furthermore, the summary
judgment does not state with “unmistakable clarity” that it is a final judgment, and in fact,
it contains no language regarding finality. See id. Accordingly, the summary judgment
was interlocutory. See id. at 200.
We are cognizant that the present dispute arose because the district clerk sent
notice to the parties that a “final judgment” had been signed and the case summary
showed at that time that the case “was disposed in March, 2016.” These circumstances
are not determinative because, as stated previously, we examine the language of the
judgment and the record to determine finality. See id. at 195; see, e.g., Philips v.
McNease, 467 S.W.3d 688, 693 (Tex. App.—Houston [14th Dist.] 2015, no pet.)
(“Because a final judgment does not have to be in any particular form, deciding whether
a judicial decree is a final judgment must be determined from its language and the record
in the case.”). In this regard, a docket-sheet entry ordinarily forms no part of the record
that may be considered; rather, it is a memorandum made for the trial court and clerk’s
convenience. Barnes v. Deadrick, 464 S.W.3d 48, 53 (Tex. App.—Houston [1st Dist.]
2015, no pet.); In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.—Houston
[1st Dist.] 2006) (orig. proceeding). Docket-sheet entries are inherently unreliable
because they lack the formality of orders and judgments. Barnes, 464 S.W.3d at 53;
Ashton Grove L.C. v. Jackson Walker L.L.P., 366 S.W.3d 790, 795 (Tex. App.—Dallas
2012, no pet.); In re Bill Heard Chevrolet, Ltd., 209 S.W.3d at 315. A docket-sheet entry
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is generally considered insufficient to constitute a judgment or decree of the court and
cannot contradict, overrule, or take the place of a written order or judgment. Barnes, 464
S.W.3d at 53; Kalyanaram v. Burck, 225 S.W.3d 291, 303 (Tex. App.—El Paso 2006, no
pet.); In re Bill Heard Chevrolet, 209 S.W.3d at 315.
Based on the language of the summary judgment and our review of the record, the
March 17, 2016 summary judgment was not a final judgment because it did not dispose
of Rolando’s claims against relator, and accordingly, the trial court retains plenary
jurisdiction over this matter. We overrule relator’s first issue, and having done so, need
not address her second issue.3 See TEX. R. APP. P. 47.1, 47.4.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
the response, and the applicable law, is of the opinion that the relator has not met her
burden to obtain mandamus relief. Accordingly, we LIFT the stay previously imposed in
this case and we DENY the petition for writ of mandamus. See id. R. 52.10(b) (“Unless
vacated or modified, an order granting temporary relief is effective until the case is finally
decided.”).
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
8th day of December, 2016.
3 In connection with relator’s first issue, relator contended that the “court clerk” refused to set
relator’s motions for summary judgment for hearing. Given Rolando’s position that the trial court case was
ongoing and given our resolution of this original proceeding, we trust that relator’s pleadings will be handled
appropriately in the future.
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