In re M & O Homebuilders, Inc. , 2017 Tex. App. LEXIS 948 ( 2017 )

OPINION

Harvey Brown, Justice

Paul Elizondo sued M & 0 Home-builders, Inc., Orlando Cuello, Maria De Jesus Gamez, and Texas Homebuilders, LLC (collectively M & 0) for damages in connection with the construction of a home. Seeking to remove a lien placed on the property by Elizondo, M & 0¹ filed a summary motion and obtained an order removing the lien, but this order also disposed of all parties and claims and stated it was final and appealable.² The trial court issued a corrected order more than thirty days later, correcting the original order to remove the finality language. M & 0 now seeks a writ of mandamus to require the trial court to set aside this amended order on the ground that it was improperly signed outside the trial court’s plenary power and is therefore void.³ We grant the petition.

Standard of Review

To be entitled to mandamus relief, a relator must show both that the trial court abused its discretion and that there is no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004). When an order is void, “the relator need not show it did not have an adequate appellate remedy, and mandamus relief is appropriate.” In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000).

Analysis

M & O contends it is entitled to mandamus relief because the order signed by the trial court on March 11, 2016 was a final judgment, the trial court had no plenary power to sign the subsequent ay 9, 2016 amended order, and, as a result, the May 9 amended order is void. A trial court has plenary power to grant a new trial or modify a judgment within thirty days after signing the judgment. See Tex. R. Civ. P. 329b(d). Once that period expires, a judgment may not be set aside, though the trial court “may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316 .... ” See id. 329b(f).

The March 11 order is a final judgment

Whether the trial court had plenary power to enter the May 9 order depends upon whether the March 11 order was a final judgment. See In re Daredia, 317 S.W.3d 247, 249-50 (Tex. 2010) (per curiam). M & O contends the March 11 order is final because it contains an unequivocal expression of the trial court’s intent to dispose of the case.

In Lehmann, the Texas Supreme Court addressed the issue of “when a judgment rendered without a conventional trial on the merits is final for purposes of appeal.”⁴ Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001). A judgment is final if it “actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Id. at 192-93. Thus, “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.” Id. at 206.

The Court gave an example of clear and unequivocal language that would leave no doubt that the trial court entered a final judgment: “This judgment finally disposes of all parties and all claims and is appeal-able.” Id. This language is indistinguishable from the language in the March 11 order. The March 11 order states: “This judgment is final, disposes of all claims and all parties, and'is appealable.”⁵ Thus, it states with “unmistakable clarity” that the trial court is rendering a final judgment as to all parties and claims.⁶ See id. at 192-93. Because the March 11 order contains this clear finality language, it was final and appealable. In Daredia, the Tex-as Supreme Court re-affirmed that language such as that quoted in Lehmann would leave no doubt of a court’s intention “to finally dispose of the case” and that this must be given effect even if the parties did not intend the judgment to be final. 317 S.W.3d at 248.

Outside the context of summary motions governed by Chapter 53 of the Property Code, numerous intermediate court decisions have held that a summary-judgment order was final and appealable when it contained similar finality language, but they reversed because the order disposed of claims that were not part of the summary-judgment motion.⁷

Our dissenting colleague contends that we are disregarding the Leh-mann directive to look to the entire record to determine whether the order disposes of all parties and claims. But the Court instructed courts to do so only if the order was not clear and unequivocal. “[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, 39 S.W.3d at 205 (emphasis added). Because Lehmann uses the disjunctive “or,” an order on a dispositive motion is final in either of two situations: (1) when it actually disposes of every pending claim and party, which requires a review of the record, or (2) when the order “clearly and unequivocally states that it finally disposes of all claims and all parties.” Id. at 205-06. Only when an order granting a dispositive motion does not clearly and unequivocally dispose of all claims is it necessary to review the record to see whether the order nevertheless “actually” disposes of them all. See id. at 205.

Had the March 11 order not included clear and unequivocal finality language, we would look to the record to see if the order actually disposed of all parties and claims. See id. at 205-06; Daredia, 317 S.W.3d at 249 (holding that clear and unequivocal finality language in trial court’s order was effective despite record showing a final judgment was improper). Because the March 11 order included language that evidenced a clear and unequivocal intent to render a final judgment, we are required to give effect to its clear and unequivocal language. See Daredia, 317 S.W.3d at 248.

Elizondo argues that the Lehmann finality rule is inapplicable because M & O’s motion sought only to remove a lien and did not seek a judgment. He maintains that the March 11 order cannot be a judgment because it grants a motion that did not seek a partial summary judgment. Our dissenting colleague agrees and argues that neither Lehmann nor Daredia applies outside the summary judgment or default judgment context.⁸ However, neither case limits its holding to summary judgments or default judgments. See Henderson v. S. Farm Bureau Ins. Co., 370 S.W.3d 1, 4 n.4 (Tex. App.—Texarkana 2012, pet. denied) (observing that the Lehmann holding is not limited to summary judgments).

Even if Lehmann were to apply only to motions seeking judgments, the motion in this case did seek a partial judgment. M & O’s summary motion sought an adjudication of Elizondo’s lien claim and thus, in effect, sought a partial “summary judgment.” The motion sought a declaration by the trial court that the lien filed by Elizondo on M & O’s property was defective and should be removed.⁹ Although our dissenting colleague contends that removal of a lien under section 53.160 is not an adjudication of a claim and therefore, the Lehmann rules do not apply, a lien is a claim allowed by statute for parties to secure payment. See Daughters of Charity Health Servs. v. Linnstaedter, 226 S.W.3d 409, 411 (Tex. 2007) (observing that lien against property “is necessarily a claim against its owner”); McAllen Hosps., L.P. v. Gomez, No. 13-12-00421-CV, 2013 WL 784688-, at *5 (Tex. App.—Corpus Christi Feb. 28, 2013, no pet.) (mem. op.) (holding that hospital lien is claim against patient).

Thus, a summary motion that seeks a declaration that a lien is invalid—as Eli-zondo’s motion did—seeks a summary adjudication of that claim and operates, in effect, as a motion for partial summary judgment.¹⁰ Our Court has previously addressed an appeal from a summary-judgment order resolving a lien and we did not hold that the judgment was not final because a lien is not a claim to be adjudicated.¹¹ Similarly, the Austin court has addressed a summary judgment resolving a lien without holding that a lien is not a claim.¹²

The trial court’s adjudication of the lien, as well as all other claims and parties, may have been erroneous, but the Lehmann finality rules nevertheless apply. See id. at 200. The Lehmann Court held that even if a defendant moves for summary judgment on only one of a plaintiffs multiple claims, a trial court’s order that renders judgment that the plaintiff take nothing on all claims is a final, but erroneous, judgment. Id. And in two subsequent decisions the Court reiterated that, while a judgment may be erroneous, finality language renders a judgment final and appealable.¹³ Intermediate appellate courts have reached the same conclusion,¹⁴

Our holding that the March 11 order is final adheres not only to the rule announced in Lehmann but also to the Court’s reaffirmation of it in Daredia.¹⁵ In Daredia, the trial court’s order contained finality language similar to that in the March 11 order, and the Court held that the inadvertent rendition of a final judgment was “nonetheless unequivocal, and therefore effective.” 317 S.W.3d at 249. The same is true here. The March 11 order is final even if it grants more relief than was sought or intended. See id. at 249; Lehmann, 39 S.W.3d at 206,

Our dissenting colleague notes that Lehmann states the fundamental principle “that the right of appeal is not lost by an overly technical application of the law.” But M & O had the opportunity to appeal the March 11 order. Our ruling in this mandamus cannot affect a right M & O waived by failing to pursue it and our application of the Lehmann rule is not overly technical.' The principle here is simple: an order granting a dispositive motion that states it is a final judgment and contains finality language essentially identical to that quoted in Lehmann is a final judgment. Thus, the party against whom a dispositive motion is granted is aware that it should read the proposed order and object if it is overly broad and contains finality language when the motion sought to dispose of only some claims or parties. Lehmann ensures that “[simplicity and certainty in appellate procedure” determine the time for perfecting an appeal. 39 S.W.3d at 205. The rule here, as in Lehmann, is simple and certain: unequivocal finality language in an order granting a dispositive motion means the order is a final judgment.

We also reject the contention that the Lehmann finality rule may be avoided on the basis that a trial court is without the power to grant a final judgment on a motion seeking only partial relief. In Lehmann, the concurrence asserted that a trial court had no jurisdiction to grant more relief than requested, but the Court disagreed. Lehmann, 39 S.W.3d at 207. It explained, “We do not agree that a court’s poiver to act, as distinct from the proper exercise of that power, is defined by a party’s request for relief.” Id. Thus, the trial court’s jurisdiction to render a final judgment is not defined by the relief sought in the motion. The March 11 judgment may be erroneous, but it is final.

In conclusion, the March 11 order removes the lien, awards attorney’s fees, and contains finality language almost identical to the language the Lehmann Court held would unequivocally express the intent to render a final judgment disposing of all parties and claims. Therefore, the March 11 order is final.

The May 9 amended order impermissibly attempts to correct a judicial error after expiration of plenary power

Having determined that the March 11 order was a final judgment, we must next address whether the trial court had the power to enter the May 9 amended order. The amended order was signed almost 60 days after the final judgment, well after expiration of the trial court’s plenary power. See Tex. R. Civ. P. 329b(d), (f); Daredia, 317 S.W.3d at 250. Elizondo contends that the trial court retained the power to amend its order—even though plenary power expired—because the amended order corrected a clerical error, not a judicial error.

When deciding if a nunc pro tunc order corrects a judicial or a clerical error, we look to the judgment actually rendered by the trial court, rather than the one it might have rendered. See Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). The determination whether an error in a judgment is judicial or clerical is a question of law that we review de novo. See id. at 232.

A judicial error “arises from a mistake of law or fact that requires judicial reasoning to correct” and “occurs in the rendering, rather than the entering of the judgment.” Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see In re D & KW Family, L.P., No. 01-11-00276-CV, 2012 WL 3252683, at *5 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, orig. proceeding) (mem. op.). Examples of judicial errors include changing an award of property in the judgment to a different person, see Mathes v. Kelton, 569 S.W.2d 876, 877 (Tex. 1978), adding a party to the judgment, see LaGoye v. Victoria Wood Condo. Ass’n, 112 S.W.3d 777, 784 (Tex. App.—Houston [14th Dist.] 2003, no pet.), and changing the judgment to reflect dismissal of one, rather than two, defendants. See In re Rollins Leasing, Inc., 987 S.W.2d 633, 637 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding).

“A clerical error does not result from judicial reasoning, evidence or determination.” Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 682 (Tex. App.—Houston [1st Dist.] 1997, no writ). Instead, a clerical error is one made in the transcription or entry of a judgment that causes the judgment to incorrectly state what was actually rendered. See Escobar, 711 S.W.2d at 231-32; Naime v. Soliman, No. 04-11-00865-CV, 2012 WL 2835161, at *3 (Tex. App.—San Antonio July 11, 2012, no pet.) (mem. op.) (listing examples of clerical errors including correction of date of judgment, party name, and numerical errors).

“[W]hether the court pronounced judgment orally and the terms of that pronouncement are questions of fact.” Escobar, 711 S.W.2d at 232. The legal question of whether the error was judicial or clerical does not arise until “the trial court factually determines whether it previously rendered judgment and the judgment’s contents.” Id. Evidence of the judgment actually rendered may come from witness testimony, docket entries, or the trial judge’s personal recollection. See id.

According to Elizondo, the trial judge’s personal recollection demonstrates that the correction was clerical, not judicial. See Rawlins v. Rawlins, 324 S.W.3d 852, 855 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that, if trial court judge who rendered original judgment grants nunc pro tunc, “a presumption arises that the judge’s personal recollection supports the finding of clerical error”), abrogated on other grounds by In re A.M.C., 491 S.W.3d 62 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding). But the trial court’s nunc pro tunc does not indicate the error was clerical—that is, that the judgment entered differs from the judgment rendered. Instead, the nunc pro tunc and the trial court’s recollection reflect that the entered and rendered judgment should not have been rendered at all. An error in rendering judgment is a judicial error. See Escobar, 711 S.W.2d at 231; Finlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968).

Although the judgment the trial court signed was prepared by M & 0 and contained a mistake, once the trial court signed it, “the mistake [became] part of the court’s judgment as actually rendered and it [was] therefore a judicial error rather than a clerical error.” D & KW Family, 2012 WL 3252683, at *6 (citing Daredia, 317 S.W.3d at 250); see Dikeman v. Snell, 490 S.W.2d 183, 185-86 (Tex. 1973) (orig. proceeding) (provisions attorney allegedly inserted in judgment by mistake “become part of the court’s judgment and therefore are judicial errors”); In re Fuselier, 56 S.W.3d 265, 268 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding) (attorney’s drafting error in proposed judgment that trial court signs is not clerical error). “[E]ven if the court renders incorrectly, it cannot alter a written judgment which precisely reflects the incorrect rendition.” Escobar, 711 S.W.2d at 232. The record does not indicate that the trial court “actually rendered, orally or otherwise, a judgment different from the one it signed and entered.” D & KW Family, 2012 WL 3252683 at *7; see Barton, 178 S.W.3d at 127. Therefore, we must reject Elizondo’s argument that the error here was clerical.

Because the amended order corrected a judicial error, the trial court had no power to sign the amended order after its plenary power expired, and thus, the amended order is void and was an abuse of discretion. See Daredia, 317 S.W.3d at 250; Dikeman, 490 S.W.2d at 186. M & O is therefore entitled to mandamus relief. See Sw. Bell Tel., 35 S.W.3d at 605; In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (per curiam).

We conditionally grant M & O’s petition for writ of mandamus, and direct the trial court to. vacate its amended order dated May 9, 2016. See Tex. R. App. P. 52.8(c). We are confident that the trial court will promptly comply. The writ will issue only if it does not.

1 . Maria De Jesus Gamez is the sole director, officer, and shareholder of M & 0 Home-builders. Her husband, Orlando Cuello, is employed by M & O. Texas Homebuilders was formed in 2013. Gamez and Cuello’s daughter is a managing member of Texas Homebuild-ers.

2 . The order in its recitals also mistakenly states that it grants relief to the plaintiff, not the defendant. But recitals in a judgment are rebuttable if they conflict with the record. See Cannon v. ICO Tubular Servs., Inc., 905 S.W.2d 380, 387 (Tex. App.—Houston [1st Dist.] 1995, no writ), abrogated on other grounds by Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 308 (Tex. 2000). Neither Elizondo nor our dissenting colleague contend that this obvious mistake created an ambiguity in the judgment.

3 .The underlying case is Paul Elizondo v. M & O Homebuilders, Inc., Orlando Cuello, Maria De Jesus Gamez, and Texas Homebuilders, LLC, cause number 2014-07209, pending in the 190th District Court, Harris County, Tex-as, the Honorable Patricia Kerrigan, presiding.

4 . Although Lehmann concerned a motion for summary judgment, the Court did not limit its ruling to summary judgments, The Court said, "We consider only cases in which one final and appealable judgment can be rendered and not cases, like some probate and receivership proceedings, in which multiple judgments final for purposes of appeal can be rendered on certain discrete issues.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001). And the Court held "that in cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Id. at 192-93. One member of the Court expressed concerns about not limiting Leh-mann to summary judgments. See id. at 214 (Baker, J., concurring),

5 . Our dissenting colleague repeatedly mentions the Mother Hubbard clause included in the trial court’s order, intimating that we rely on that to reach our conclusion. We do not. Lehmann holds that a Mother Hubbard clause is no longer an indication that the trial court intended to - render a final judgment, 39 S.W.3d at 203-04. In reaching our conclusion, we rely solely on the finality language in the order that is virtually identical to the language Lehmann held would leave no doubt as to the finality of the judgment. See id. at 206.

6 .Elizondo does not identify any language in the trial court’s order creating any ambiguity, Cf. Taub v. Dedman, 56 S.W.3d 83, 87 (Tex. App.—Houston [14th Dist,] 2001, pet. denied) (holding that order that contained some finality language—but not all the language set out in Lehmann—was not final when it also stated that it was directed only to certain named defendants); In re Granite Shop, No. 02-08-410-CV, 2009 WL 485696, at *2-3 (Téx. App.—Fort Worth Feb. 24, 2009, orig. proceeding) (mem. op.) (directing trial court to vacate ambiguous order granting motion for partial summary judgment because, while order stated it disposed of all claims and parties, it also said plaintiff did hot seek summary judgment against the individual defendants indicating claims against individual defendants remained pending),

7 . See, e.g., S. Mgmt. Servs., Inc. v. SM Energy Co., 398 S.W.3d 350, 357-58 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding that summary-judgment order was final based on finality language, but reversing and remanding claims not raised in summary-judgment motion); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 362 (Tex. App.—Dallas 2009, pet. denied) (holding that order was final based on finality language but erroneous because motion for summary judgment raised only some of multiple claims asserted); Underwater Servs., Inc. v. Offshore Drilling Co., No. 01-11-00889-CV, 2013 WL 2096640, at *2 n.2, *8 (Tex. App.—Houston [1st Dist,] May 14, 2013, no pet.) (mem. op.) (holding there was no question judgment was final and appeal-able because it contained unmistakable finality language, but reversing and remanding claims not addressed in summary-judgment motions); Dexter v. Strickland, No. 04-09-00459-CV, 2010 WL 3582380, at *2 (Tex. App.—San Antonio Sept. 15, 2010, no pet.) (mem. op.) (holding trial court judgment was final based on finality language, but reversing and remanding claim not raised in summary-judgment motion).

8 . Our dissenting colleague raises alarm that our holding would “automatically convert” any order “that mistakenly includes a Mother Hubbard clause and finality language”—even an order granting a motion for extension of time—"into a final judgment on the merits of the case.” Such an order is not before us. The motion here was, in effect, a motion for partial summary judgment, granting dispositive relief on Elizondo’s lien claim and awarding M & O attorneys’ fees.

9 . M & O sought to remove the lien under Section 53.160 of the Texas Property Code and to obtain actual damages or $10,000, as well as attorney's fees and exemplary damages, under the Fraudulent Lien Act. See Tex. Prop. Code Ann. § 53.160 (authorizing the filing of a "summary motion” to remove invalid or unenforceable lien); Tex. Crv. Prac. & Rem. Code Ann. § 12.002 (authorizing recovery of actual damages or $10,000, whichever is greater, and court costs, attorney’s fees, and exemplary damages if trial court finds lien is fraudulent). M & O sought to remove the lien on the grounds that Elizondo was not the proper person to file a lien, misapplication of construction trust funds was not a valid basis for a lien, and the lien was fraudulent. M & O gave 21 days' notice before the date of the hearing, as required by the statute. See Tex. Prop. Code Ann, § 53.160(c). The trial court's March 11 order granted the motion, without stating the grounds, and awarded M & O attorney’s fees in the trial court and on appeal.

10 . See Wesco Distrib., Inc. v. Westport Grp, Inc., 150 S.W.3d 553, 555 (Tex. App.—Austin 2004, no pet.) (affirming judgment granting summary motion to remove lien under Chapter 53 of Property Code); Big H Constr, Inc. v. Hensley, No. 01-10-00379-CV, 2011 WL 1233594, at *1-2 (Tex. App.'—Houston [1st Dist.] March 31, 2011, no pet.) (mem. op.) (reversing trial court order granting summary judgment under Section 53.160); Ibarra v. Nicholes, No. 01-06-00762-CV, 2007 WL 2214889, at *1 (Tex. App.—Houston [1st Dist.] Aug. 2, 2007, pet. denied) (mem. op.) (affirming order granting summary judgment, dismissing counterclaims, and vacating lien).

11 . See Blevins v. Andrews, No. 01-08-00598-CV, 2010 WL 1611382, at *3-4 (Tex. App.—Houston [1st Dist.] Apr. 22, 2010, no pet.) (mem. op.) (affirming trial court order granting "summary motion to remove an invalid lien”).

12 . See Ready Cable, Inc. v. RJP S. Comfort Homes, Inc., 295 S.W.3d 763, 767 (Tex. App.—Austin 2009, no pet.) (reversing summary judgment and remanding because (1) trial court should have granted "summary motion seeking denial of RJP’s summary motion pursuant to property code section 53.160,” and (2) counterclaims remained pending).

13 . See Daredia, 317 S.W.3d at 249 (holding that judgment with Lehmann-like finality language was effective even if parties did not intend to seek final judgment); Jacob v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001) (per curiam) (holding that judgment was final for purposes of appeal because it contained finality language, but reversing and remanding breach-of-contract claim not addressed in summary-judgment motion).

14 . See Tex-Fin, Inc. v. Ducharne, 492 S.W.3d 430, 437 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (holding that, regardless of whether the trial court's ruling was erroneous or without legal basis, trial court’s “final summary judgment” order, which granted motion "in part” but also contained Lehmann finality language, was final and appealable); Greatwood Cmty. Ass'n, Inc. v. Ofor, No. 01-11-00509-CV, 2012 WL 5989425, at *2 (Tex. App.—Houston [1st Dist.] Nov. 29, 2012, no pet.) (mem. op.) (reversing judgment because summary-judgment order was final based on order’s finality language but was erroneous as granting more relief than intended).

15 .The judgment in Daredia was a default judgment and it—like the order here—was inadvertently broader than intended. See 317 S.W.3d at 248. The Court did not let the scope of the relief requested in the motion or the other pleadings in the case trump the judgment’s language which "clearly and unequivocally indicates that it is intended to be final.” Id. at 249.