                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00154-CV


JORGE CAMARILLO                                                APPELLANT
                                                             AND APPELLEE

                                      V.

CABINETS BY MICHAEL, INC. AND                                  APPELLEES
MICHAEL WELLS                                             AND APPELLANTS

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          FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 342-266475-13

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              CONCURRING MEMORANDUM OPINION1

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      While I concur in the result, as to the summary judgment ruling, I would

hold only that the trial court erred by granting summary judgment in a certain

amount when the summary judgment evidence did not conclusively establish that




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      See Tex. R. App. P. 47.4.
amount, see Tex. R. Civ. P. 166a(c), (f), and then further erred by incorporating

that partial summary judgment into its final judgment.

         I would not hold, however, that the trial court erred by granting the motion

for rehearing.      A trial court has plenary power—power that is full, entire,

complete, absolute, perfect, and unqualified—over, and therefore the jurisdiction

and authority to reconsider, not only its judgment but also its interlocutory orders

until thirty days after the date a final judgment is signed or, if a motion for new

trial or its equivalent is filed, until thirty days after the motion is overruled by

signed, written order or operation of law, whichever first occurs. Callaway v.

Martin, No. 02-16-00181-CV, 2017 WL 2290160, at *3 n.3 (Tex. App.—Fort

Worth May 25, 2017, no pet.) (mem. op.); see Bass v. Waller Cty. Sub–Reg’l

Planning Comm’n, 514 S.W.3d 908, 916 (Tex. App.—Austin 2017, no pet.) (“Both

orders, being interlocutory, remained subject to change or modification—or being

abrogated altogether—until merged into a final judgment.”); see also Flagstar

Bank, FSB v. Walker, 451 S.W.3d 490, 504 (Tex. App.—Dallas 2014, no pet.)

(“[A] trial court has the inherent right to change or modify any interlocutory order

or judgment until the judgment on the merits of the case becomes final.”). The

error was not in the granting of the motion for rehearing; it was in the signing of

the judgment after rehearing.

         As to Appellees’ attempt to confess judgment, I concur that the trial court

erred.     Pursuant to rule of civil procedure 314, a defendant’s confession of

judgment must be sworn to by the party in whose favor the judgment is to be

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taken. See Tex. R. Civ. P. 314(a) (“A petition shall be filed and the justness of

the debt or cause of action be sworn to by the person in whose favor judgment is

confessed.”).    The rationale behind this requirement is a simple and

understandable one—a defendant cannot, by confession, bind a plaintiff to a

lesser amount than the plaintiff seeks to prove at trial. Because Appellees failed

to comply with rule 314 and attempted to confess judgment without Appellant’s

consent as to the justness of the amount to be confessed, the trial court erred by

basing its judgment upon the disputed amount.


                                                  /s/ Bonnie Sudderth

                                                  BONNIE SUDDERTH
                                                  CHIEF JUSTICE

DELIVERED: June 28, 2018




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