in Re Paty McDermott

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-22-00497-CV

IN RE Paty MCDERMOTT

Original Mandamus Proceeding 1

Opinion by: Beth Watkins, Justice

Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

Delivered and Filed: February 15, 2023

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

This original proceeding involves two orders. In the first order, the trial court granted

summary judgment in favor of real party in interest James McDermott. In the second order, signed

nine months after the first, the trial court concluded that its prior summary judgment order was a

final, appealable judgment. We conclude the first order—the summary judgment—was not a final

judgment. Therefore, we conditionally grant Paty’s petition for writ of mandamus.

BACKGROUND

James and Paty married and subsequently divorced. Following their divorce, they resumed

living together and entered into a nonmarital domestic partnership agreement (the Agreement).

Among other things, the Agreement set a compensation schedule for Paty’s benefit. An exception

1 This proceeding arises out of Cause No. 2021CI09758, styled James William McDermott v. Paty McDermott, pending in the 166th Judicial District Court, Bexar County, Texas. The Honorable Martha Tanner signed the orders at issue in this proceeding. 04-22-00497-CV

to the compensation schedule states “Paty is to make no contact with any family, coworkers or

friends of James. If [Paty] deliberately makes contact with any of the above persons, the entirety

of [the compensation schedule] is null and void.” The Agreement noted that incidental or

accidental contact with James’s family, coworkers, or friends did not render the compensation

schedule null and void.

Approximately one year after the parties executed the Agreement, the San Antonio Police

Department was called to James’s residence after an altercation between Paty and another woman.

James then filed the underlying lawsuit alleging that Paty’s contact with the woman voided the

compensation schedule. James sought injunctive relief, declaratory relief, actual damages, pre- and

post-judgment interest, attorney’s fees, and court costs.

James moved for summary judgment on his declaratory judgment claim. In his motion,

James argued Paty violated the Agreement by “deliberately contacting” the woman at James’s

residence. James asked the trial court to declare the compensation schedule null and void and to

award him “such other and further relief to which [he] may be justly entitled.” Paty did not file a

response to James’s motion. On September 22, 2021, the trial court granted James’s motion for

summary judgment and declared the compensation schedule in the Agreement null and void (the

summary judgment).

Six months later, on March 23, 2022, Paty filed a motion for reconsideration of the

summary judgment. 2 James responded that the summary judgment was a final order and the trial

court, therefore, lacked plenary power to reconsider its ruling. The trial court agreed with James.

On July 7, 2022, it signed an Order on Finality of Summary Judgment finding that the summary

2 On the same day, Paty filed a first supplemental answer, several counterclaims, and a motion to consolidate this case with an eviction case between the parties.

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judgment was a “final disposition of the case” and concluding that the trial court lacked plenary

power to consider the merits of Paty’s motion for reconsideration.

Paty filed a petition for writ of mandamus challenging the Order on Finality of Summary

Judgment. This court invited responses from the trial court and James. Only James filed a response.

ANALYSIS

Standard of Review

“Mandamus is an extraordinary proceeding, encompassing an extraordinary remedy.”

Deloitte & Touche, LLP v. Fourteenth Ct. of Appeals, 951 S.W.2d 394, 396 (Tex. 1997) (orig.

proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). A

writ of mandamus may issue if a relator establishes both that the trial court abused its discretion,

and that it lacks an adequate appellate remedy. See In re J.B. Hunt Transp., Inc., 492 S.W.3d 287,

299 (Tex. 2016) (orig. proceeding). A trial court’s failure to correctly analyze or apply the law is

an abuse of discretion. See In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001)

(orig. proceeding). “Mandamus relief is proper when a trial court erroneously holds that its plenary

power has expired, particularly when the trial court fails to recognize that an order is interlocutory

rather than final.” In re Wilmington Tr., Nat’l Ass’n, 524 S.W.3d 790, 791 (Tex. App.—Houston

[14th Dist.] 2017, orig. proceeding).

Applicable Law

Generally, orders rendered after a conventional trial on the merits are presumed final. See

Vaughn v. Drennon, 324 S.W.3d 560, 562 (Tex. 2010) (per curiam). However, this presumption

of finality does not apply to summary judgments. See Scott v. Poindexter, 53 S.W.3d 28, 32 (Tex.

App.—San Antonio 2001, pet. denied). “[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

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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).

“Although no ‘magic’ language is required, a trial court may express its intent to render a

final judgment by describing its action as (1) final, (2) a disposition of all claims and parties, and

(3) appealable.” Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2020) (per curiam) (citing

In re R.R.K., 590 S.W.3d 535, 543 (Tex. 2019)). If a trial court’s order states that it is final, that it

is appealable, and that it disposes of all parties and claims, then those recitations of finality must

be accepted at face value and without reference to the record. See id.; In re Elizondo, 544 S.W.3d

824, 828 (Tex. 2018) (orig. proceeding) (per curiam). However, if “an order’s finality is not clear

and unequivocal, then a reviewing court must examine the record to determine whether the trial

court intended the order to be final.” In re R.R.K., 590 S.W.3d at 540.

Application

Paty argues the summary judgment did not dispose of all the parties’ claims and did not

contain any indication of finality. Paty maintains that because the order is not final on its face, and

because the summary judgment disposes only of James’s declaratory judgment claim, the trial

court abused its discretion by finding the summary judgment to be a final judgment. In response,

James contends the summary judgment is final because he moved for summary judgment on his

sole independent claim—his request for declaratory relief. 3

The summary judgment is not final on its face; that is, it does not recite that it is final, that

it is appealable, and that it disposes of all claims between James and Paty. See Bella Palma, 601

3 James also argues that he has waived the claims not disposed of by the summary judgment. Our record contains no indication that James obtained a nonsuit or amended his petition to abandon the unresolved claims. And any purported “waiver” could convert a partial summary judgment into a final, appealable judgment only after the date all parties and all claims were actually disposed of. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995) (finding nonsuit of remaining claims converted partial summary judgment into final, appealable judgment only after trial court signed dismissal order).

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S.W.3d at 801. But it does provide that James “shall have all such writs and other process as may

be necessary for the enforcement of this Judgment for which execution issues.” James asserts this

language demonstrates the trial court’s intent that the summary judgment was final. As a

preliminary matter, “enforceable” does not necessarily mean “appealable”—if it did, every

enforceable interlocutory order would be immediately appealable, which is not the law in Texas.

See, e.g., Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 730 (Tex. 2019)

(explaining why appeals generally “may be taken only from final judgments”). And more

importantly, we do not believe this language, standing alone, constitutes an unequivocal expression

of finality. Cf. In re Estate of Brazda, 582 S.W.3d 717, 729 (Tex. App.—Houston [1st Dist.] 2019,

no pet.) (opining existence of right to writ execution, in addition to other factors, may be “some

indication that the trial court intended” order to be final).

Because the summary judgment was not unequivocally final on its face, we look to the

record to determine the trial court’s intent. See In re R.R.K., 590 S.W.3d at 544 (reviewing record

to determine finality). In his live petition in the underlying suit, in addition to declaratory relief,

James sought injunctive relief, actual damages, pre- and post-judgment interest, attorney’s fees,

and court costs. Specifically, James sought “monetary relief of $100,000.00 or less.” Apart from

his declaratory judgment action, the summary judgment did not dispose of any of James’s other

claims or requests for relief. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (per curiam)

(holding declaratory judgment was not final where it did not address claim for attorney’s fees); In

re Bros. Oil & Equip., Inc., No. 03-17-00349-CV, 2017 WL 3902617, at *3 (Tex. App.—Austin

Aug. 22, 2017, orig. proceeding) (mem. op.). Furthermore, while the summary judgment

references damages, it finds “any damages are unliquidated” but does not determine the amount.

See In re Blankenhagen, 513 S.W.3d 97, 100 (Tex. App.—Houston [14th Dist.] 2016, orig.

proceeding) (noting general rule that judgment is interlocutory, rather than final, if amount of

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damages cannot be ascertained). Likewise, it does not award attorney’s fees or assess costs. See

McNally, 52 S.W.3d at 196; cf. Reyes v. Credit Based Asset Servicing & Securitization, 190 S.W.3d

736, 739 (Tex. App.—San Antonio 2005, no pet.).

Because the summary judgment was not final on its face and the record does not show that

on September 22, 2021, the trial court intended to render a final judgment, we hold the summary

judgment was interlocutory. See In re R.R.K., 590 S.W.3d at 538. The trial court abused its

discretion by concluding otherwise in its subsequent order. See In re Am. Homestar of Lancaster,

Inc., 50 S.W.3d at 483 (noting failure to correctly analyze or apply law constitutes abuse of

discretion).

We also conclude Paty lacks an adequate remedy on appeal. See Blankenhagen, 513

S.W.3d at 102 (“Apart from mandamus, relators have no means of obtaining review of the trial

court’s ruling that it lacks plenary jurisdiction.”). “An order must be read in light of the importance

of preserving a party’s right to appeal.” Lehmann, 39 S.W.3d at 206. As the Texas Supreme Court

has recognized, “[s]implicity and certainty in appellate procedure are nowhere more important

than in determining the time for perfecting appeal.” Id. at 205.

Here, nine months after signing the summary judgment, the trial court affirmatively

declared for the first time that it believed the order was final. The trial court disclaimed its plenary

power after the deadlines for Paty to appeal had passed, and it did so based on an order that was

not final on its face and on a record that does not support finality. If allowed to stand, this finding

would leave the summary judgment, essentially, unreviewable. This factual scenario is therefore

distinguishable from Bella Palma, where the order was titled “Final Judgment,” it contained a

Mother Hubbard clause (“All relief not granted herein is denied”), and explicitly recited that it was

a final judgment. See Bella Palma, 601 S.W.3d at 800. Furthermore, the Bella Palma judgment-

debtor had an indication that the judgment may be final—he appealed it. See id. Granting

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mandamus relief here is consistent with the Supreme Court’s instruction that litigants should be

able to calculate appellate timetables with certainty so they do not inadvertently lose the ability to

seek appellate review. See id. at 802 (recognizing importance of leaving no doubt about finality);

see also Lehmann, 601 S.W.3d at 802. After all, “[i]f the final judgment is deficient, the remedy

comes by appeal, not by the deprivation of appellate jurisdiction.” Id.

CONCLUSION

We conditionally grant Paty’s petition for writ of mandamus and direct the trial court to

vacate its July 7, 2022 Order on Finality of Summary Judgment within fifteen days. The writ will

issue only if the trial court fails to comply.

Beth Watkins, Justice

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