in Re Paty McDermott ( 2023 )

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.
-2-
04-22-00497-CV
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
-3-
04-22-00497-CV
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).
-4-
04-22-00497-CV
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
-5-
04-22-00497-CV
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
-6-
04-22-00497-CV
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
-7-