Mark T. Womack v. Arcadio D. Rodriguez ( 2022 )

Motion to Dismiss Granted; Motion for Sanctions Denied; Appeal Dismissed
and Memorandum Opinion filed August 4, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00658-CV
MARK T. WOMACK, Appellant
V.
ARCADIO D. RODRIGUEZ, Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2008-54135
MEMORANDUM OPINION
Appellant Mark T. Womack (“Womack”) challenges the trial court’s denial
of his motion for sanctions against Armando Lopez (“Lopez”), the attorney for
appellee Arcadio D. Rodriguez (“Rodriguez”). In six issues, Womack argues: (1)
the trial court’s August 27, 2020, order was ultra vires; (2) the trial court lacked
authority to vacate the sanctions judgment; (3) there were no grounds for reducing
the sanctions award; (4) the trial court lacked discretion to refuse the signing of an
order granting the full sanctions damages; (5) Lopez’s consent to sanctions bars his
opposition to the relief sought by Womack; and (6) Lopez is estopped to claim
inaction as a basis for denial of the relief sought by Womack.1
On September 28, 2020, Rodriguez filed a motion to dismiss Womack’s
appeal, arguing that this court lacks jurisdiction. Because we conclude that
Womack’s notice of appeal was untimely, we grant Rodriguez’s motion and
dismiss Womack’s appeal for lack of jurisdiction.
I. BACKGROUND
Womack is an attorney who represented Rodriguez in a wrongful
termination suit. See Rodriguez v. Womack, No. 14-10-01213-CV, 2012 WL
19659, at *1 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, pet. denied) (mem.
op.). Rodriguez subsequently filed a lawsuit against Womack for legal malpractice.
The parties agree that Rodriguez’s lawsuit against Womack was called to trial on
February 21, 2016. On March 18, 2016, Womack moved for sanctions against
Lopez. At a hearing on April 4, 2016, the trial court stated: “The Court grants
motion for sanctions. I will review the amounts and then make the appropriate
award.”
On July 10, 2016, the trial court granted Rodriguez’s notice of non-suit.2
Further, the trial court “[o]rdered that all of plaintiff’s claims and causes of action
against defendant Mark T. Womack be and are hereby dismissed with prejudice to
the refiling of same.”
1
Apart from citing Texas Rule of Civil Procedure 306a(2) under his fourth issue,
Womack cites no authority in support of his issues on appeal. See Tex. R. App. P. 38.1(c), (i);
see also Sklar v. Sklar, 598 S.W.3d 810, 827 (Tex. App.—Houston [14th Dist.] 2020, no pet.)
(holding argument that did not include authority in support of assertion or cogent argument
was inadequately briefed).
2
There is no reporter’s record of the July 10, 2016 hearing in the record before this court.
2
On October 28, 2019, Womack moved for entry of an order on his motion
for sanctions against Lopez. At a hearing on December 9, 2019, Womack
contended that the trial court had granted sanctions at the April 4, 2016 hearing and
requested a written order from the court. The following colloquy occurred:
[Lopez]: On July 10 the Court heard the second request that
sanctions be imposed. The Court after hearing
what transpired between the 4th of April and that
day ordered -- saw that we had tried to negotiate
with him and there was an offer made that was
reasonable but he denied that request. So the Court
asked if Mr. Rodriguez was willing to nonsuit his
case with prejudice and he authorized me to do
that. We did. He ordered me to write the order in
front of Mr. Irelan. The Court then signed the
order of nonsuit from the bench. You declared the
sanctions was denied.
...
[Trial Court]: So this issue has been brought up before in
exchange for nonsuit in the case. The Court
vacated its sanction -- the amount in sanctions or
did not impose them. I can’t recall given the length
of time since the operative events in this case. So
in lieu of assessing the sanctions for the issues that
the Court identified at that time and them having
made the nonsuit, the Court decided not to go
forward with sanctions. I think this issue has been
raised again multiple times. I had discussions with
your previous counsel on this issue. He asserted
them in any event. He said you would want them
in any event or at least you would want them in
any event or at least that was my recollection.
[Womack]: That’s correct.
[Trial Court]: But the Court denied that relief and I am denying
that again. Is there anything else?
[Womack]: Can I have a written order, Your Honor?
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[Trial Court]: It’s denied. Is there anything else?
[Womack]: I would like a written order for the record.
[Trial Court]: It’s on the record. The Court denies your motion
for sanctions. Is there anything else?
[Lopez]: No, Your Honor. Thank you.
On July 2, 2020, Womack filed a Motion to Modify Judgment Against
Armando Lopez; or Motion for Judgment Nunc Pro Tunc; or Motion for New
Trial, again requesting the trial court enter a written order awarding sanctions. On
August 27, 2020, the trial court signed an order denying the motion.3 Womack
filed a notice of appeal on September 23, 2020.
II. DISCUSSION
Womack’s arguments on appeal are premised on his argument that the trial
court rendered judgment in his favor on his motion for sanctions at the hearing on
April 4, 2016. For the reasons discuss below, we are not persuaded by this
argument.
A. THE TRIAL COURT DID NOT RENDER JUDGMENT ON APRIL 4, 2016
The trial court orally pronounced on April 4, 2016, that “the Court grants
motion for sanctions. I will review the amounts and then make the appropriate
award.”
Generally, an order is valid when orally pronounced from the bench in open
court, and rendition occurs when the trial court officially announces its decision,
either orally in open court, or by a memorandum filed by the clerk of the court.
Stein v. Stein, 868 S.W.2d 902, 903 (Tex. App.—Houston [14th Dist.] 1994, no
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The trial court’s order stated: “This Court has DENIED and DENIES again Mart T.
Womack’s motion for sanctions. [Womack] is ADMONISHED and ORDERED to cease filing
or noticing any motions or pleadings requesting sanctions against Plaintiff. Notice is hereby
given that the failure to comply without good cause may result in fine or sanction.”
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writ). In this case, however, the trial court did not specify the amount of sanctions
to be awarded and thus did not dispose of the issue. See In re Educap, Inc., 01-12-
00546-CV, 2012 WL 3224110 (Tex. App.—Houston [1st Dist.] Aug. 7, 2012, orig.
proceeding) (mem. op.); see also Carroll v. Metro Office Equip., Inc., No. 02-22-
00087-CV, 2022 WL 1682156, at *1 (Tex. App.—Fort Worth May 26, 2022, no
pet. h.) (mem. op.) (“Although the order purports to grant Appellee’s request for
fees, it does not specify the amount of fees awarded, and thus fails to dispose of the
claim.”). Moreover, the trial court’s oral pronouncement at the April 4, 2016,
hearing was insufficient to render an order granting sanctions because it
contemplated a future reduction of the order to writing, which never occurred. See
S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857–58 (Tex. 1995) (per curiam);
Inwood Forest Cmty. Improvement Ass’n v. Arce, 485 S.W.3d 65, 71–72 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied). Therefore, we reject Womack’s
argument that on April 4, 2016, the trial court rendered judgment in his favor
regarding sanctions.
B. MOTION TO DISMISS
In his motion to dismiss, Rodriguez argues that the trial court orally denied
Womack’s motion for sanctions against Lopez on July 11, 2016, at the same time
the trial court rendered the order dismissing Rodriguez’s suit with prejudice. The
reporter’s record from the hearing on July 11, 2016 is not part of the record on
appeal. Assuming, without deciding, that the trial court did not deny Womack’s
motion for sanctions against Lopez on July 11, 2016, the record confirms that the
trial court orally denied Womack’s request for sanctions against Lopez on
December 9, 2019. Accordingly, we conclude that the judgment in this case
became final and appealable on December 9, 2019, at the latest. We also conclude
that Womack did not pursue a timely appeal from that order.
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Womack filed his notice of appeal on September 23, 2020, following the
trial court’s August 27, 2020 order denying Womack’s Motion to Modify
Judgment, Motion for Judgment Nunc Pro Tunc, and Motion for New Trial. By
that time, the trial court’s plenary power had expired. See Tex. R. Civ. P. 306a,
329b(e).
After the trial court loses its jurisdiction over a judgment, it can correct by a
judgment nunc pro tunc only clerical errors in the judgment. Escobar v. Escobar,
711 S.W.2d 230, 231 (Tex. 1986). Although Womack’s Motion to Modify
Judgment, Motion for Judgment Nunc Pro Tunc, and Motion for New Trial
requested nunc pro tunc relief, the relief he sought was judicial and not the
correction of a clerical error. Assuming, arguendo, that the error of which he
complained in his motion was clerical, Womack does not complain on appeal of
any error in denying nunc pro tunc relief, and we lack ordinary appellate
jurisdiction over the denial of nunc pro tunc relief in any event. See Shadownbrook
Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990) (per curiam); see also In re
Bridges, 28 S.W.3d 191, 195–96 (Tex. App.—Fort Worth 2000, orig. proceeding)
(concluding that denial of judgment nun pro tunc is subject to mandamus review).
Accordingly, we conclude that we lack jurisdiction to address Womack’s
issues, grant Lopez’s motion to dismiss, and dismiss the appeal for lack of
jurisdiction. See Baker v. Baker, 469 S.W.3d 269, 272 (Tex. App.—Houston [14th
Dist.] 2015, no pet.).
III. MOTION FOR SANCTIONS & REQUEST FOR CHIEF DISCIPLINARY COUNSEL
REFERRAL
Lopez asks us to determine that Womack’s appeal is frivolous and to
sanction Womack by awarding Lopez damages. See Tex. R. App. P. 45. Lopez also
asks this court to refer Womack to the State Bar’s Office of Chief Disciplinary
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Counsel.
When a court determines it has no jurisdiction over an appeal, all it can do is
declare its lack of jurisdiction and dismiss the appeal. See Harper v. Welchem, Inc.,
799 S.W.2d 492, 496 (Tex. App.—Houston [14th Dist.] 1990, no writ); Yancey v.
Jacob Stern & Sons, Inc., 564 S.W.2d 487, 488, (Tex. App.—Houston [1st Dist.]
1978, no writ). An appellate court cannot consider a sanctions motion in a
jurisdictional vacuum. See Scott & White Memorial Hosp. v. Schexnider, 940
S.W.2d 594, 596 (Tex. 1996) (per curiam); see also Lipshy Motorcars, Inc. v.
Sovereign Assocs., Inc., 944 S.W.2d 68, 72 (Tex. App.—Dallas 1997, no writ)
(“Having no jurisdiction over this appeal, we conclude that we have no jurisdiction
to consider [appellee’s] motion for sanctions and attorneys’ fees.”). We therefore
deny Lopez’s motion for sanctions and request for a referral of Womack to the
State Bar’s Office of Chief Disciplinary Counsel.
IV. CONCLUSION
We dismiss Womack’s appeal for want of jurisdiction and deny Lopez’s
motion for sanctions.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Jewell, Bourliot, and Poissant.
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