Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed July 1, 2014.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-14-00329-CV



                     IN RE WILMA REYNOLDS, Relator


                          ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              300th District Court
                            Brazoria County, Texas
                          Trial Court Cause No. 48170

                         MEMORANDUM OPINION

      On May 2, 2014, relator Wilma Reynolds filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App.
P. 52. In the petition, relator asks this court to compel the Honorable C. G. “Trey”
Dibrell, sitting as a visiting judge of the 300th District Court of Brazoria County,
to enter a final and appealable judgment in the underlying litigation or, in the
alternative, to proceed to trial and final judgment. We conditionally grant relator’s
petition.

                                  BACKGROUND

      Relator Wilma Reynolds and real party in interest David Reynolds divorced
in 2009. In the divorce decree, the trial court awarded Wilma as her sole property
fifty percent of David’s 2008 post-tax estimated income from Quantlab Incentive
Partners I, LLC. In 2010, Wilma filed a petition for enforcement by contempt,
claiming that David failed to satisfy his obligation to convey to Wilma her share of
the Quantlab income or to provide documentation verifying that amount. For
purposes of this original proceeding, Wilma was operating under her third
amended petition, filed in February 2014. Wilma sought relief in the form of
attorney’s fees and costs under the Texas Family Code, a judgment of contempt
against David, an order directing David to produce various financial documents,
and a liquidation of Wilma’s Quantlab income award along with an order directing
David to pay the amount due Wilma into the court registry.

      In January 2014, David filed an amended motion for summary judgment and
for sanctions in regards to a previous version of Wilma’s enforcement petition.
After arguing why he was entitled to summary judgment on the entirety of
Wilma’s petition, David argued for attorney’s fees, costs, and post-judgment
interest under Chapter 10 of the Texas Civil Practice and Remedies Code on the
grounds that Wilma’s petition was a frivolous pleading. David answered Wilma’s
third amended petition in April 2014. In addition to asserting several affirmative
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defenses, David reiterated his request for sanctions in the form of attorney’s fees,
costs, and post-judgment interest under Chapter 10 of the Civil Practice and
Remedies Code.

      The trial court held a hearing on David’s motion for summary judgment and
sanctions on April 22, 2014, at which the court granted David’s motion for
summary judgment. After the court rendered its judgment, Wilma inquired as to
whether the judgment resolved all issues pending in the enforcement action, or
whether there would be a trial on any remaining issues. In the following colloquy
between the court and the parties, the trial court clearly expressed its belief that the
grant of summary judgment resolved all matters in Wilma’s enforcement petition,
and thus there were no issues remaining for trial. Wilma suggested David had
asserted counterclaims that had not been resolved, and requested the inclusion of
express finality language in the written judgment. The court declined Wilma’s
request, indicating that the draft language was sufficient. The resulting written
order by the trial court reads:

      ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
      AND SANCTIONS
      On April 22, 2014, the Court considered Respondent’s Motion for
      Summary Judgment and Sanctions

      Respondent’s Motion for Summary Judgment and Sanctions is hereby
      GRANTED.

      SIGNED AND ENTERED on April 22, 2014



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      In her petition for writ of mandamus, Wilma asserts the trial court abused its
discretion by construing its order as a final judgment, and refusing to sign a final
judgment or, alternatively, proceed to trial. Wilma argues the court’s grant of
summary judgment is an interlocutory order because it does not dispose of David’s
counterclaim for attorney’s fees, assess costs against either party, or contain
language indisputably disposing of all claims.

                            THE MANDAMUS STANDARD

      Generally, mandamus relief is appropriate only to correct a clear abuse of
discretion or to compel the performance of a ministerial duty, and where the relator
has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011)
(orig. proceeding). In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.
2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992)
(orig. proceeding). As the party seeking relief, the relator bears the burden of
demonstrating entitlement to mandamus relief. See In re Ford Motor Co., 165
S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding); Walker, 827 S.W.2d
at 837.

      A trial court abuses its discretion if it: (1) reaches a decision so arbitrary and
unreasonable as to constitute a clear and prejudicial error of law; (2) clearly fails to
correctly analyze or apply the law; or (3) acts without reference to any guiding
rules or principles. In re Park Mem’l Condo. Ass’n, Inc., 322 S.W.3d 447, 449–50
(Tex. App.—Houston [14th Dist.] 2010, orig. proceeding). “An act is
nondiscretionary, or ministerial, when the law clearly spells out the duty to be
performed by the official with sufficient certainty that nothing is left to the exercise
                                           4
of discretion.” Mattox v. Grimes Cnty. Comm’rs Court, 305 S.W.3d 375, 380 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied) (op. on reh’g). An appellate remedy
is adequate when any benefits to mandamus review are outweighed by the
detriments. Prudential, 148 S.W.3d at 136.

                                      ANALYSIS

      Although Wilma argues the trial court abused its discretion, Wilma’s actual
complaint is the purported failure of the trial court to perform the ministerial duty
of either signing a final judgment or proceeding to trial on the remaining claims.
Mandamus relief may be available where a trial court refuses to perform the truly
ministerial task of entering judgment or proceeding with the consideration of a
case. See Aycock v. Clark, 60 S.W. 665, 666 (Tex. 1901) (orig. proceeding) (“If the
respondent had refused to proceed to try the plaintiffs’ cause, or . . . had refused to
enter judgment upon the verdict, this court would have had power . . . to have
commanded him to try the cause, and . . . to compel him to enter a judgment.”);
Palacios v. Rayburn, 516 S.W.2d 292, 293 (Tex. Civ. App.—Houston [1st Dist.]
1974, orig. proceeding) (“While this court has the power to compel a trial judge to
effectuate its judgment in a cause, its authority is limited to the ministerial act of
entry of judgment.”); see also Ex parte Newman, 81 U.S. (14 Wall.) 152, 165
(1871) (“Applications for a mandamus to a subordinate court are warranted . . .
where the subordinate court . . . refuses to hear and decide the controversy, or
where such a court . . . refuses to render judgment or enter a decree in the case . . .
.”); cf. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.


                                           5
proceeding) (“While we have jurisdiction to direct the trial court to make a
decision, we may not tell the court what that decision should be.”).

      To obtain mandamus relief based on a trial court’s failure to perform a
ministerial duty, the relator must show that the trial court: (1) had a legal duty to
perform a non-discretionary act; (2) was asked to perform that act; and (3) refused
to do so. See O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992)
(orig. proceeding); see also Mattox, 305 S.W.3d at 380. David argues in his
response that Wilma is not entitled to mandamus relief because she did not make
the requisite request to the trial court. As a basic proposition, David is correct that
“[m]andamus relief generally requires a predicate request for an action and a
refusal of that request.” In re Le, 335 S.W.3d 808, 814 (Tex. App.—Houston [14th
Dist.] 2011, orig. proceeding). But Wilma did request the trial court to either
include more explicit finality language in the summary judgment order or
otherwise proceed with trial. Even if there were some more specific request Wilma
could have made, “the requirement that there be a predicate request and adverse
ruling is excused when such a request would have been futile and the trial court’s
refusal little more than a formality.” Le, 335 S.W.3d at 814–15. The trial court was
explicit at the hearing that it viewed its ruling as disposing of all claims pending in
Wilma’s enforcement petition. A further request to the court by Wilma would not
have added anything to the trial court’s consideration. See Le, 335 S.W.3d at 815.
Thus, Wilma’s mandamus petition does not fail on this ground.

      Whether Wilma is entitled to mandamus relief turns on whether the trial
court’s order granting David’s motion for summary judgment is interlocutory, such
                                           6
that the court’s refusal to proceed with a trial or enter a final judgment would
constitute a failure to perform a ministerial duty. The Supreme Court of Texas
undertook an extensive review of the difficulty in determining the finality of
judgments in the case of Lehmann v. Har-Con Corporation, 39 S.W.3d 191 (Tex.
2001). In that decision, the supreme court held that “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; see also id. at 205. Although the supreme court rejected
the sufficiency of the “Mother Hubbard” clause and suggested alternate language
that would indicate finality, id. at 203–04, 206, the high court emphasized that it is
the intent of the trial court and operative effect of the judgment—not necessarily
the particular words used in a judgment—that determines finality. See id. at 200,
203, 205–06.

      The record leaves no doubt that the trial court’s grant of summary judgment
disposed of Wilma’s affirmative claims in her enforcement petition. Thus, the only
question regarding finality of the court’s judgment stems from David’s request for
attorney’s fees, costs, and interest under Chapter 10 of the Civil Practice and
Remedies Code. The court made no specific reference to David’s request at the
hearing. And although the order states the court is granting David’s “Motion for
Summary Judgment and Sanctions” (emphasis added), the record does not indicate
that the court has assessed any expenses against Wilma or that the court issued an
order specific to the sanctions. See Tex. Civ. Prac. & Rem. Code § 10.005 (“A

                                          7
court shall describe in an order imposing a sanction under this chapter the conduct
the court has determined violated Section 10.001 and explain the basis for the
sanction imposed.”). Thus, underlying Wilma’s assertion that the court’s judgment
is interlocutory is the principal that “there is no [ ] presumption of finality
following a summary judgment,” In re Burlington Coat Factory Warehouse of
McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig. proceeding), coupled with
the possible continued pendency of David’s sanctions request.

      A court may award sanctions in the form of reasonable expenses, including
attorney’s fees, where a party files a frivolous pleading or motion. Tex. Civ. Prac.
& Rem. Code §§ 10.001, 10.004. The supreme court has commented that “a
judgment does not have to resolve pending sanctions issues to be final.” Lane Bank
Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex. 2000). Several Texas
courts, including this court, have made similar statements. See, e.g., In re J.R., 123
S.W.3d 669, 671 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“Because the
relief thereby sought was in the nature of sanctions, these claims did not have to be
disposed of in order for the order to become final.”), superseded by statute on
other grounds as noted in In re K.M.B., 148 S.W.3d 618, 621 (Tex. App.—
Houston [14th Dist.] 2004, no pet.); see also Berger v. King, No. 01-06-00871-CV,
2007 WL 1775991, *2 (Tex. App.—Houston [1st Dist.] June 21, 2007, no pet.)
(mem. op.) (“Even without addressing the sanctions issue, the summary judgment
disposed of all parties and issues in the pleadings, making it a final judgment.”);
Jobe v. Lapidus, 874 S.W.2d 764, 766 (Tex. App.—Dallas 1994, writ denied) (“A
sanctions order is not a judgment. . . . If a sanctions order is not a judgment, then a

                                           8
motion for sanctions is not a pleading that frames issues which must be resolved in
a final judgment.”) (internal citations omitted).

      However, several recent decisions considering the effect of a voluntary
nonsuit have construed a sanctions request as a “claim” for purposes of
determining finality. Texas Rule of Civil Procedure 162, entitled “Dismissal or
Non-Suit,” provides that where a party takes a nonsuit: “Any dismissal pursuant to
this rule shall not prejudice the right of an adverse party to be heard on a pending
claim for affirmative relief . . . . A dismissal under this rule shall have no effect on
any motion for sanctions, attorney’s fees or other costs, pending at the time of
dismissal . . . .” In construing this rule, the supreme court has stated that “[a] claim
for affirmative relief must allege a cause of action, independent of a plaintiff’s
claim, on which the claimant could recover compensation or relief, even if the
plaintiff abandons or is unable to establish his cause of action.” Univ. of Tex. Med.
Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 101
(Tex. 2006) (per curiam).

      Thus, in the nonsuit context, a request for sanctions may constitute a “claim”
that survives a nonsuit. Notably, in Villafani v. Trejo, the supreme court stated:

      Whether a particular sanction is considered a claim for affirmative
      relief that survives a nonsuit . . . depends on the purpose of the
      sanction. . . . Monetary sanctions . . . may serve compensatory and
      punitive purposes beyond the specific proceeding and, therefore,
      survive a nonsuit and can be the subject of an appeal. . . . A claim for
      attorney’s fees is not an affirmative claim where it is based solely on
      the defense against the other party’s claims but is an affirmative claim
      where it is based on an independent ground or as a sanction.

                                           9
251 S.W.3d 466, 470 (Tex. 2008) (internal citations omitted); see also
CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299,
300 (Tex. 2013) (per curiam) (“[A] sanction for filing a frivolous lawsuit does
survive nonsuit, else its imposition would rest completely in the plaintiff’s hands,
defeating its purpose.”); Crites v. Collins, 284 S.W.3d 839, 842 (Tex. 2009) (per
curiam) (“[S]tatutory sanctions may be claims for affirmative relief, which cannot
be mooted by a voluntary nonsuit.”).

      And if a sanctions request is a “claim” that survives a nonsuit, a judgment is
not final and appealable until the sanctions request is specifically disposed of by
the trial court, or until the trial court issues an order with sufficient finality
language. See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 95–97 (Tex. 2009)
(per curiam) (holding order of dismissal did not dispose of sanctions motion under
Chapter 10 of the Civil Practice and Remedies Code, and thus was not final and
appealable); Crites, 284 S.W.3d at 840 (“A judgment dismissing all of a plaintiff’s
claims against a defendant, such as an order of nonsuit, does not necessarily
dispose of any cross-actions, such as a motion for sanctions, unless specifically
stated within the order.”) (emphasis added), 841 (stating with respect to pending
motion for sanctions under Section 74.351(b) of the Civil Practice and Remedies
Code that “[b]ecause the order of nonsuit itself does not unequivocally express an
intent for the order to be a final and appealable order, and because it does not
address all pending claims, the order was not final”) (emphasis added); see also
K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 606 (Tex. App.—Houston [14th
Dist.] 2012, pet. denied) (holding neither nonsuit nor order of dismissal disposed of

                                         10
motion for sanctions brought under Chapters 10 and 13 of the Civil Practice and
Remedies Code).

      If Wilma had nonsuited her enforcement petition, the opinions in
CTL/Thompson, Unifund, Crites, Villafani, and K.J. all indicate that David’s
Chapter 10 sanctions request still would have been pending as a claim, and would
have to be disposed before there would be an appealable final judgment. In this
instance, Wilma’s enforcement petition was disposed of by a grant of summary
judgment in favor of David, and not a nonsuit. Nevertheless, we find the foregoing
precedent instructive in resolving the issue presented. Although the cited cases
involve unique considerations present in the nonsuit context, we are not aware of
distinguishing precedent that clearly establishes we may consider in the summary
judgment context the trial court’s judgment as being final and appealable
notwithstanding the continued pendency of David’s sanctions request, when the
very same sanctions request would render a judgment interlocutory in the nonsuit
context.

      Indeed, both the supreme court and this court have recognized in the
summary judgment context that an outstanding request for fees can constitute a
claim that must be disposed for a judgment to be final. See McNally v. Guevara, 52
S.W.3d 195, 196 (Tex. 2001) (per curiam) (“Because the judgment . . . did not
dispose of the defendants’ claim for attorney [sic] fees, it was not an appealable
judgment.”); Ortiz v. Collins, 203 S.W.3d 414, 420–21 (Tex. App.—Houston [14th
Dist.] 2006, no pet.) (holding that a request for sanctions in the form of attorney’s
fees under the Deceptive Trade Practices Consumer Protection Act constituted a
                                         11
counterclaim that had to be disposed for the judgment to be final, and noting the
conclusion “is also consistent with the treatment of requests for attorneys’ fees in
other contexts.”); cf. Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex.
2007) (per curiam) (noting summary judgment would have been interlocutory had
it not addressed all of party’s statutory claims for expert witness fees).

      Our decision also is guided by the supreme court’s instruction that: “[a]
judgment ‘must be read in light of the importance of preserving a party’s right to
appeal’; if we imply finality from anything less than an unequivocal expression, a
party’s right to appeal may be jeopardized.” Burlington Coat, 167 S.W.3d at 830
(quoting Lehmann, 39 S.W.3d at 206). A conclusion that David’s Chapter 10
request is not a claim and does not need to be resolved for the grant of summary
judgment to be a final judgment would mean that Wilma would lose her right to
appeal given the passage of time. See Tex. R. App. P. 26.1 (providing that absent
an exception, a notice of appeal must be filed within 30 days after the judgment is
signed); see also Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend,
LLP, 404 S.W.3d 75, 80 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“If the
notice of appeal is untimely, the reviewing court lacks jurisdiction and must
dismiss the case.”).

      Accordingly, we conclude that David’s request for a sanctions award under
Chapter 10 of the Civil Practice and Remedies Code must be resolved for the trial
court’s judgment to be final and appealable. “[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,
                                          12
or it states with unmistakable clarity that it is a final judgment as to all claims and
parties.” Lehmann, 39 S.W.3d at 192–93. There is no clear disposition of David’s
Chapter 10 sanctions request in the trial court’s order granting David’s motion for
summary judgment, and the order does not state with unmistakable clarity that it is
final. Therefore, the trial court’s order is interlocutory.

      Because the trial court declined Wilma’s request for more explicit finality
language in the summary judgment order and also refused to proceed with a trial
(as the court concluded no issues remained to try), Wilma is left without a final and
appealable judgment. A trial court has a ministerial duty to enter a final judgment
upon the disposition of all issues pending in a case, or to proceed with the
consideration of issues that remain pending before it. Therefore, the trial court is
required either to sign a judgment that states it is final in the manner described by
the supreme court, see Lehmann, 39 S.W.3d at 192–93, 205, or otherwise clearly
dispose of David’s request for sanctions under Chapter 10 of the Civil Practice and
Remedies Code, see Crites, 284 S.W.3d at 841 (“If other claims remain in the case,
‘an order determining the last claim is final.’”) (quoting Lehmann, 39 S.W.3d at
200). We cannot and do not express any opinion on how the trial court should
address David’s pending sanctions claim. Rather, we merely hold that the trial
court must act to resolve the matter pending before it.

                                     CONCLUSION

      For the foregoing reasons, we conditionally grant the relator’s petition for
writ of mandamus, and instruct the trial court to sign within a reasonable time an
order rendering a final judgment or otherwise disposing of the pending request for
                                            13
sanctions. We are confident that the respondent will act in accordance with this
opinion. The writ will issue only if the trial court fails to do so.



                                    PER CURIAM

Panel consists of Chief Justice Frost and Justices Donovan and Brown.




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