O'Rourke Dist. Co. Inc. v. Texas Premier Resources, LLC ( 2022 )

Trial Court Judgment of January 22, 2020, Declared Void and Vacated; Trial
Court Judgment of September 16, 2019, Affirmed; and Memorandum
Opinion filed January 25, 2022.
In The
Fourteenth Court of Appeals
NO. 14-19-00994-CV
O’ROURKE DIST. CO., INC., Appellant
V.
TEXAS PREMIER RESOURCES, LLC, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1114269
MEMORANDUM OPINION
Appellant argues that the trial court signed its amended final judgment after
its plenary power expired and thus the amended judgment is void. Appellant also
argues that the trial court erred in awarding attorney’s fees to appellee in the
original final judgment because the trial court’s allowing appellee an oral trial
amendment to add an attorney’s fees claim did not suffice to modify appellee’s
pleading in the absence of the filing of a written amendment. Concluding that
appellant’s first argument has merit and that appellant waived its second argument,
we declare the amended judgment void, vacate the amended judgment, and affirm
the original judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/plaintiff O’Rourke Dist. Co., Inc. filed suit against
appellee/defendant Texas Premier Resources, LLC, alleging that Texas Premier
failed to pay approximately $10,500 to O’Rourke for materials O’Rourke supplied
to Texas Premier. O’Rourke asserted various claims against Texas Premier,
including a claim for breach of a credit agreement. Texas Premier filed an answer
in which it denied O’Rourke’s allegations but did not seek to recover attorney’s
fees or any other affirmative relief.
The case proceeded to a bench trial at which O’Rourke sought to recover
against Texas Premier for breach of the credit agreement. O’Rourke also sought to
recover its attorney’s fees under a provision in the agreement allowing the
“substantially prevailing party” to recover its attorney’s fees in connection with
any claims or litigation. On September 16, 2019, the trial court signed a final
judgment ordering that O’Rourke take nothing on all of its claims and awarding
Texas Premier $6,000 in reasonable attorney’s fees (the “First Judgment”).
O’Rourke timely perfected this appeal. On January 22, 2020, the trial court signed
an amended final judgment purporting to amend its first judgment (the “Second
Judgment”).
II. ISSUES AND ANALYSIS
A. Is the Second Judgment Void?
In its first issue, O’Rourke argues that the trial court signed the Second
Judgment after its plenary power expired and that the Second Judgment is void.
The trial court signed the First Judgment on September 16, 2019. O’Rourke timely
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filed a motion for new trial, which the trial court allowed to be overruled by
operation of law on November 30, 2019, seventy-five days after the trial court
signed the First Judgment.1 See Tex. R. Civ. P. 329b(c); In re Timberlake, 501
S.W.3d 105, 110 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding). Thirty
days later, on December 30, 2019, the trial court lost its plenary power to grant a
new trial or to vacate, modify, correct, or reform the judgment. See Tex. R. Civ. P.
329b(e); In re Timberlake, 501 S.W.3d at 110.
After a trial court’s plenary power over a final judgment has expired, the
trial court generally cannot sign an order or judgment in the same case in which the
court sets aside, vacates, modifies, corrects, or reforms its judgment, and an order
or judgment in the same case in which the trial court does so generally is void. See
In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per
curiam); In re Martinez, 478 S.W.3d 123, 126 (Tex. App.—Houston [14th Dist.]
Oct. 1, 2015, orig. proceeding). There are some exceptions to this rule, but the
facts of this case do not fall within any of the potential exceptions. See In re
Martinez, 478 S.W.2d at 126–27 (listing the potential exceptions under which a
trial court may set aside, vacate, modify, correct, or reform a prior final judgment
in the same case). Therefore, the Second Judgment is void, and the First Judgment
is the trial court’s final judgment.2 See In re Sw. Bell Tel. Co., 35 S.W.3d at 605; In
re Martinez, 478 S.W.2d at 126–28. We sustain the first issue, declare the Second
Judgment to be void, and vacate the Second Judgment.
B. Did O’Rourke waive its Complaint?
In its second issue, O’Rourke argues that the trial court erred in awarding
Texas Premier attorney’s fees in the First Judgment because the trial court’s
1
Even though the motion for new trial was overruled by operation of law on November 30,
2019, the trial court signed an order purporting to deny the motion on December 4, 2019.
2
Texas Premier effectively conceded this issue by not responding to it in its brief.
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allowing Texas Premier an oral trial amendment to add an attorney’s fees claim did
not suffice to modify Texas Premier’s pleading in the absence of the filing of a
written amendment before the trial court signed the First Judgment (the
“Complaint”).3 A trial amendment to a party’s pleading must be filed in writing.
See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 73 (Tex. 2000). If a trial court
accepts a trial amendment in oral rather than written form, the pleading is
defective, but a party waives its complaint to this defect in the pleading if the party
fails to specifically object before rendition of judgment in a case tried to the bench
or before the submission of the charge in a case tried to a jury. See Tex. R. Civ. P.
90, 274; Zimlich, 29 S.W.3d at 73; In re M.C.K., No. 14-17-00289-CV, 2018 WL
1955065, at *4 (Tex. App.—Houston [14th Dist.] Apr. 26, 2018, no pet.) (mem.
op.); Arch. Const., Inc. v. Tyburec, 730 S.W.2d 47, 50 (Tex. App.—Houston [14th
Dist.] 1987, writ ref’d n.r.e.); see also Roark v. Stallworth Oil & Gas, Inc., 813
S.W.2d 492, 494 (Tex. 1991) (holding that an unpleaded affirmative defense may
serve as a basis for a summary judgment when it is raised in the summary-
judgment motion and the opposing party does not object to the failure to plead the
affirmative defense before the trial court renders judgment).
Near the end of the bench trial in today’s case, Texas Premier’s counsel
called himself as a witness to testify regarding Texas Premier’s attorney’s fees.
O’Rourke objected to Texas Premier’s counsel testifying on the ground that there
was no pleading in Texas Premier’s answer that would entitle Texas Premier to
recover attorney’s fees and that Texas Premier had not filed a counterclaim. Texas
Premier’s counsel asked the trial court to allow Texas Premier to make an oral trial
amendment of Texas Premier’s pleading so Texas Premier could seek to recover its
3
O’Rourke asserts in its opening brief that “an oral amendment at trial is insufficient to modify
pleadings” and that “[t]he oral order granting Texas Premier’s oral trial amendment cannot
suffice.” (internal quotations and citation omitted).
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attorney’s fees under the credit agreement’s prevailing-party provision. The trial
court overruled O’Rourke’s objection, stated that the court would hear the
testimony regarding Texas Premier’s attorney’s fees, and ruled that it would allow
the requested amendment to Texas Premier’s pleading. At the end of the bench
trial, the trial court announced that the court found against O’Rourke on all of its
claims, including its request for attorney’s fees. The trial court stated that it would
not rule at that time on Texas Premier’s request for attorney’s fees because the
court wanted to consider a case that O’Rourke had presented to the trial court. The
trial court awarded O’Rourke attorney’s fees in the First Judgment.
On appeal, O’Rourke contends that it did not waive the Complaint based on
its objection during trial when Texas Premier’s counsel called himself as a witness.
But that objection was to Texas Premier presenting evidence as to its attorney’s
fees, and the objection was based on the absence of a pleading by Texas Premier
seeking recovery of attorney’s fees. In O’Rourke’s objection, it did not object that
the trial court’s allowing Texas Premier an oral trial amendment to add an
attorney’s fees claim did not suffice to modify Texas Premier’s pleading in the
absence of the filing of a written amendment. After O’Rourke made its objection to
attorney’s fees testimony from Texas Premier’s attorney, Texas Premier’s counsel
asked the trial court to allow Texas Premier to make an oral trial amendment of
Texas Premier’s pleading so Texas Premier could seek to recover its attorney’s
fees under the credit agreement’s prevailing-party provision. The trial court
overruled O’Rourke’s evidentiary objection based on the lack of a pleading, stated
that it would hear the testimony regarding Texas Premier’s attorney’s fees, and
ruled that it would allow the requested amendment to Texas Premier’s pleading.
O’Rourke’s objection did not constitute a specific objection that the trial court’s
allowing Texas Premier an oral trial amendment to add an attorney’s fees claim did
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not suffice to modify Texas Premier’s pleading in the absence of the filing of a
written amendment. See In re M.C.K., 2018 WL 1955065, at *2, *4 (concluding
appellant waived complaint that the trial amendment was not in written form by
failing to raise that complaint, even though appellant objected at trial that appellee
had no pleading on file requesting a modification of the “education right” and in
response the trial court granted appellee’s request for an oral trial amendment).
O’Rourke also asserts that it avoided waiver of the Complaint by raising it in
various post-judgment filings and in its statements at the oral hearing on its motion
for new trial. We presume, without deciding, that O’Rourke raised the Complaint
by objecting at each of these points. Even under this presumption, each of these
objections occurred after the trial court signed the First Judgment, and thus came
too late to avoid waiver. See Tex. R. Civ. P. 90; Zimlich, 29 S.W.3d at 73; Arch.
Const., Inc., 730 S.W.2d at 50; see also Roark, 813 S.W.2d at 494.
O’Rourke cites Cricket Communications, Inc. v. Trillium Industries, Inc.,
235 S.W.3d 298, 310–11 (Tex. App.—Dallas 2007, no pet.). In Cricket, the trial
court denied recovery of attorney’s fees, and the case did not involve any issue of
the trial court allowing an oral trial amendment. See Cricket Communications, 235
S.W.3d at 310–11. Thus, the Cricket case is not on point in our analysis as to
whether O’Rourke waived the Complaint. See id. O’Rourke also relies on Dallas
Area Rapid Transit v. Morris, 434 S.W.3d 752, 760–61 (Tex. App.—Dallas 2014,
pet. denied). In Morris, the trial court allowed an oral trial amendment for the
plaintiff to plead the applicable standard of care, but the court of appeals concluded
that the plaintiff did not need to plead the applicable standard of care, so the
statements by the appellate court that the defendant did not waive any complaint
regarding the oral trial amendment were obiter dicta. See Morris, 434 S.W.3d at
760–61. In any event, the Morris court stated that the defendant objected after the
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plaintiff sought an oral trial amendment, and the appellate court indicated that the
plaintiff objected twice—once “at the time the oral amendment was made” and
once “at the charge conference.” Morris, 434 S.W.3d at 760, n.6. The Morris case
is not on point.
In part of its briefing, O’Rourke also indicates that rather than allowing
Texas Premier an oral trial amendment, the trial court granted Texas Premier leave
to file a written amendment to the pleadings in the future. In context, we construe
the trial court’s ruling near the end of trial as allowing an oral trial amendment.4
We conclude that O’Rourke waived the Complaint by failing to raise it by
specific objection before rendition of judgment. See Tex. R. Civ. P. 90; Zimlich, 29
S.W.3d at 73; In re M.C.K., 2018 WL 1955065, at *2, *4; Arch. Const., Inc., 730
S.W.2d at 50. Therefore, we overrule the second issue, and having addressed all of
O’Rourke’s issues, we affirm the First Judgment.5
/s/ Randy Wilson
Justice
Panel consists of Justices Jewell, Poissant, and Wilson.
4
At oral argument on the motion for new trial, Texas Premier’s lawyer stated that “[w]e made an
oral trial amendment and asked for attorney’s fees.” In response the trial court stated, “You did
that orally, though, and I granted it.”
5
The trial court also awarded Texas Premier (1) “any reasonable and necessary appellate
attorney’s fees . . . for defending . . .an appeal in any court of appeals,” if O’Rourke
unsuccessfully appealed the First Judgment to a court of appeals; and (2) “any reasonable and
necessary appellate attorney’s fees . . . for responding to a petition for review, and if review is
granted, defending . . . an appeal in the Supreme Court of Texas,” if O’Rourke unsuccessfully
appealed the First Judgment to the Supreme Court of Texas. O’Rourke’s second issue, if
successful would preclude all recovery of attorney’s fees by Texas Premier. But O’Rourke has
not assigned error specifically as to these awards of appellate attorney’s fees, nor has O’Rourke
argued that the trial court erred in making these awards because the trial court did not specify an
amount of fees. In adjudicating this appeal, we need not and do not address any issue specific to
these awards of appellate fees.
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