                                                                            ACCEPTED
                                                                       05-15-00104-CV
                                                              FIFTH COURT OF APPEALS
                                                                       DALLAS, TEXAS
                                                                  2/6/2015 10:14:43 AM
                                                                            LISA MATZ
                                                                                CLERK

                                                                     	
                     NO.	05‐15‐00104‐CV	
                              	                         FILED IN
                                                 5th COURT OF APPEALS
                 IN	THE	COURT	OF	APPEALS	            DALLAS, TEXAS
              FOR	THE	FIFTH	DISTRICT	OF	TEXAS	   2/6/2015 10:14:43 AM
                       DALLAS,	TEXAS	                  LISA MATZ
                                                         Clerk
	
	
                     In	re	TONY	R.	SAAD	
	
	
                FROM	254TH	DISTRICT	COURT	
                  DALLAS	COUNTY,	TEXAS	
               HON.	JAMES	MARTIN	PRESIDING	
                  CAUSE	NO.	DF‐14‐14203	
	
	
    REPLY	IN	SUPPORT	OF	PETITION	FOR	WRIT	OF	MANDAMUS	
                  BY	RELATOR	TONY	R.	SAAD	
                              	
	
	
                           Jeffrey	W.	Hellberg,	Jr.	
                           		Texas	State	Bar	No.	00796738	
                           		jeff.hellberg@wickphillips.com	
                           Darla	J.	Gabbitas	
                           	Texas	State	Bar	No.	24089458	
                           	darla.gabbitas@wickphillips.com	
                           	
                           WICK	PHILLIPS	GOULD	MARTIN,	LLP	
                           3131	McKinney	Ave.,	Suite	100	
                           Dallas,	Texas	75204	
                           (214)	692‐6200	(office)	
                           (214)	692‐6255	(facsimile)	
                           	
                           ATTORNEYS	FOR	RELATOR	
                           TONY	R.	SAAD	
	

                                                            I.            INDEX	
I.         INDEX .................................................................................................................................. i 

II.        TABLE OF CASES ............................................................................................................. ii 

III.       PRELIMINARY STATEMENT ......................................................................................... 1 

IV.        ARGUMENT AND AUTHORITIES .................................................................................. 2 

      A.  The	Award	Did	Not	Make	Anderson	A	Party	of	Record. ................................................. 3 

      B.  Equity	Cannot	Extend	A	Trial	Court’s	Plenary	Jurisdiction. ........................................... 5 

      C.  Reframing	Anderson’s	Post‐Decree	Motions	Does	Not	Provide	the	Required	Vacation	
          of	the	Decree	Within	Thirty	Days. ..................................................................................... 7 

         1.       It	 is	 Not	 Necessary	 to	 View	 Anderson’s	 Post‐Decree	 Motions	 as	 Motions	 To	
                 Modify	The	Judgment	Under	Rule	329b(g). .............................................................. 7 

         2.      Regardless	of	a	Formal	Post‐Decree	Intervention,	the	Decree	Was	Not	Set	Aside	
                 Within	Thirty	Days. ..................................................................................................... 8 

V.         CONCLUSION .................................................................................................................. 11 

VI.        PRAYER ............................................................................................................................ 12 

VII.  CERTIFICATE OF COMPLIANCE ................................................................................. 13 

VIII.  VERIFICATION................................................................................................................ 14 

IX.        CERTIFICATE OF SERVICE .......................................................................................... 15 

	

	                                             	




                                                                          i
                                              II.          TABLE	OF	CASES	

Cases		              	          	         	          	          	          	         	          	          	         	          Page	

Daniels	v.	Pecan	Valley	Ranch,	Inc.,		
	 831	S.W.2d	372,	382	(Tex.	App.—San	Antonio	1992,	writ	denied)	..................	5	
	
First	Alief	Bank	v.	White,	682	S.W.2d	251	(Tex.	1982)	...............................................	11	

In	re	Florence,	377	S.W.3d	837	(Tex.	App.—Dallas	2012,	orig.	proceeding)	.......	5	

In	the	Interest	of	H.G.,	
	 267	S.W.3d	120	(Tex.	App.—San	Antonio	2008,	pet.	denied)	...........................	4,5	
	
Malone	v.	Hampton,	
	 182	S.W.3d	465	(Tex.	App.—Dallas	2006,	no	pet.)	........................................	passim	

Serna	v.	Webster,	908	S.W.2d	487	(Tex.	App.—San	Antonio	1995)	....................	3,9	

State	and	County	Mut.	Fire	Ins.	v.	Kelly,		
	 915	S.W.2d	224	(Tex.App.—Austin	1996,	no	writ)	.................................................	2	

Texas	Mut.	Ins.	Co.	v.	Ledbetter,	251	S.W.3d	31	(Tex.	2008)	...................................	8,9	

Other	Authorities	

TEX.	FAM.	CODE	§	106.002	........................................................................................................	1,3	

Rules	

Tex.	R.	Civ.	P.	329b(d)	.................................................................................................................	2	




                                                                    -ii-
                       III.       PRELIMINARY	STATEMENT	

       It	is	undisputed	that	Anderson1	did	not	file	a	Motion	to	Intervene	prior	

to	October	2,	2014,	and	the	trial	court	did	not	set	aside	the	Final	Decree	before	

November	 2,	 2014.	 	 Therefore,	 Anderson’s	 Motion	 for	 New	 Trial	 did	 not	

extend	the	trial	court’s	plenary	jurisdiction,	and	the	trial	court’s	ruling	on	his	

Motion	for	New	Trial	is	void.		Anderson	does	not	dispute	the	plain	meaning	of	

the	law	and	does	not	address	the	seminal	Malone	decision.		Instead,	Anderson	

suggests	that	he	did	not	need	to	intervene	because	the	pre‐Decree	attorneys’	

fees	award2	made	him	a	party.		This	argument	is	not	supported	by	Tex.	Fam.	

Code	 section	 106.002.	 	 Alternatively,	 Anderson	 contends	 Tony	 invited	 the	

error	and	is	estopped	from	raising	the	failure	to	intervene.	Anderson	is	wrong	

because	 equity	 does	 not	 extend	 plenary	 jurisdiction.	 	 Anderson’s	 remaining	

arguments	 that	 his	 post‐Decree	 pleadings3	 are	 sufficient	 to	 extend	 plenary	

jurisdiction	fail	because	the	trial	court	did	not	set	aside	the	judgment	within	

thirty	days.			




1
       Unless	 otherwise	 noted,	 terms	 have	 the	 same	 meaning	 defined	 in	 the	 Petition	 for	
Writ	of	Mandamus	by	Relator,	Tony	Saad	(“Writ”).	
2		    See	Associate	Judge’s	Report	(Divorce),	Response	at	Appendix	3.			
3		   See	 Motion	 to	 Render	 Judgment	 on	 Attorney’s	 Fees,	 Response	 at	 Appendix	 9;	First	
Amended	 Motion	 to	 Render	 Judgment	 on	 Attorney’s	 Fees,	 Response	 at	 Appendix	 10;	 and	
Motion	for	Severance,	Response	at	Appendix	11.	

                                                1
                    IV.           ARGUMENT	AND	AUTHORITIES	

       A	 party’s	 motion	 for	 new	 trial	 extends	 a	 trial	 court’s	 plenary	

jurisdiction,	while	a	non‐party’s	Motion	for	New	Trial	does	not.4		Moreover,	a	

post‐decree	 intervention	 alone	 is	 insufficient	 to	 extend	 plenary	 jurisdiction.		

The	 trial	 court	 must	 also	 set	 aside	 the	 judgment	 within	 thirty	 days.5	 	 These	

rules	apply	to	the	facts	in	this	case.		

       Anderson’s	 Response	 to	 Relator’s	 Petition	 for	 Writ	 of	 Mandamus	

(“Response”)	ignores	the	law	and	fails	to	raise	a	dispositive	issue	for	at	least	

three	 reasons:	 	 1)	 the	 Associate	 Judge’s	 temporary	 award	 of	 Shereen’s	

attorneys’	 fees	 (“Award”)6	 did	 not	 make	 Anderson	 a	 party;	 2)	 equity	 cannot	

extend	plenary	jurisdiction;	and	3)	 Anderson	did	not	have	the	trial	court	set	

aside	 the	 Final	 Decree	 within	 thirty	 days.	 	 Accordingly,	 Anderson’s	 post‐

Decree,	 non‐party	 Motion	 for	 New	 Trial	 did	 not	 extend	 plenary	 jurisdiction,	

and	the	trial	court’s	grant	of	that	motion	more	than	ninety	days	after	entry	of	

the	Final	Decree	is	void.			

	                             	



4		     See	 Tex.	 R.	 Civ.	 P.	 329b(d);	 Malone	 v.	 Hampton,	 182	 S.W.3d	 465,	 46	 (Tex.	 App.—
Dallas	 2006,	 no	 pet.);	 State	 and	 County	 Mut.	 Fire	 Ins.	 v.	 Kelly,	 915	 S.W.2d	 224,	 227	
(Tex.App.—Austin	1996,	no	writ).	
5		    See	Malone,	182	S.W.3d	at	468.	
6		    See	Associate	Judge’s	Report	(Divorce),	Response	at	Appendix	3.			

                                                -2-
A.      The	Award	Did	Not	Make	Anderson	A	Party	of	Record.	

        The	Award,	rendered	in	default,	temporarily	ordered	the	“Father	to	pay	

Mother’s	attorney’s	fees	.	.	.	directly	to	Mother’s	attorneys.”7		While	Texas	law	

authorizes	an	attorney	to	enforce	an	award	of	attorneys’	fees	in	his	own	name,	

such	 enforcement	 does	 not	 make	 the	 attorney	 a	 party	 or	 a	 de	 facto	

intervenor.8		Anderson	became	Tony’s	creditor	by	statutory	privilege,	but	he	

remained	 a	 non‐party	 to	 the	 litigation	 dissolving	 the	 Saads’	 marriage	 and	

addressing	 the	 interests	 of	 their	 children.9	 	 Anderson’s	 suggestion	 that	 he	

became	a	party	litigant,	and	thus	all	domestic	law	attorneys	with	interim	fee	

awards	 become	 party	 litigants,	 does	 not	 logically	 follow	 the	 clear	 statutory	

language.	 	 Indeed,	 such	 a	 result	 would	 create	 conflicts	 of	 interest	 in	 some	

cases.			

        An	 intervention	 is	 the	 preferred	 method	 for	 attorneys	 to	 collect	 their	

fees,10	however,	Anderson’s	proposed	reading	of	the	statute	would	not	require	


7		     See	Response	at	Appendix	3.	
8		    See	 TEX.	 FAM.	 CODE	 §	 106.002	 (“(a)	 In	 a	 suit	 under	 this	 title,	 the	 court	 may	 render	
judgment	 for	 reasonable	 attorney's	 fees	 and	 expenses	 and	 order	 the	 judgment	 and	 post	
judgment	interest	to	be	paid	directly	to	an	attorney.		(b)	A	judgment	for	attorney's	fees	and	
expenses	 may	 be	 enforced	 in	 the	 attorney's	 name	 by	 any	 means	 available	 for	 the	
enforcement	of	a	judgment	for	debt.”).	
9		     See	id.	
10
        See	Serna	v.	Webster,	908	S.W.2d	487,	491	(Tex.	App.—San	Antonio	1995)	(“A	plea	
in	 intervention	 in	 the	 principle	 suit	 is	 an	 appropriate	 vehicle	 by	 which	 a	 discharged	
attorney	may	recover	fees	for	services	rendered.”)

                                                   -3-
any	 attorney	 with	 a	 fee	 award	 to	 file	 an	 intervention.	 	 Had	 the	 legislature	

intended	 to	 create	 instant	 conflicts	 of	 interest	 between	 lawyers	 and	 their	

clients	and	obviate	the	need	for	attorneys	to	intervene,	the	statute	would	be	

clearly	worded	to	express	such	intentions.				

       Anderson’s	 contention	 that	 he	 did	 not	 need	 to	 file	 a	 petition	 for	

intervention	 is	 supported	 by	 one	 case,	 In	 the	 Interest	 of	 H.G.,11	 a	 case	 that	

neither	 holds	 that	 an	 attorney	 becomes	 a	 party	 following	 an	 award	 of	

attorneys’	 fees	 nor	 holds	 that	 Anderson	 did	 not	 need	 to	 intervene	 under	 the	

present	facts.12		In	the	Interest	of	H.G.	rejected	a	set	of	grandparents’	attempts	

to	 intervene	 and	 modify	 the	 adjudicated	 parent‐child	 relationship	 of	 their	

biological	 grandchildren	 with	 the	 adoptive	 parents.13	 	 The	 case	 does	 not	

address	 an	 attorney’s	 fee	 award	 and,	 importantly,	 the	 grandparents	 filed	 a	

petition	to	intervene	as	the	procedural	vehicle	through	which	they	attempted	

to	 secure	 their	 alleged	 rights.14	 	 The	 case	 is	 inapposite	 to	 the	 propositions	

Anderson	cited	it	to	support.		Without	support,	Anderson’s	claims	that	his	fee	

award	“[is]	better	than	a	mere	motion	for	intervention”	should	be	rejected.15					

11		  See	 In	 the	 Interest	 of	 H.G.,	 267	 S.W.3d	 120	 (Tex.	 App.—San	 Antonio	 2008,	 pet.	
denied).	
12		   See	id.	at	126.	
13		   See	id.	at	122‐23.	
14		   See	id.	
15		   See	Response	at	p.	1.	
                                              -4-
B.     Equity	Cannot	Extend	A	Trial	Court’s	Plenary	Jurisdiction.	

       In	the	Interest	of	H.G.	also	addresses	equity	and	equitable	estoppel,	and	

holds	that	equity	cannot	confer	jurisdiction	where	it	does	not	exist.16		A	trial	

court’s	 orders	 issued	 without	 subject	 matter	 jurisdiction	 are	 void.17	 	 Thus,	

Anderson’s	argument	that	Tony	invited	the	error	and	cannot	assert	the	court’s	

lack	of	plenary	jurisdiction	is	incorrect.			

       Factually,	Tony	did	not	invite	any	error.		First,	Tony	did	not	request	the	

court	 make	 rulings	 following	 the	 termination	 of	 its	 plenary	 jurisdiction;	

therefore,	 Anderson’s	 reliance	 on	 Daniels	 is	 misguided.18	 	 In	 Daniels,	 the	

plaintiff	 moved	 for	 a	 new	 trial,	 and	 then,	 on	 appeal,	 the	 same	 plaintiff	

complained	 of	 the	 Court’s	 error	 in	 granting	 the	 requested	 new	 trial.19	 	 Here,	

Tony	did	not	submit	any	post‐trial	motions,	thus,	he	never	invited	the	Court	to	

exceed	its	plenary	jurisdiction.20			




16		    See	 In	 the	 Interest	 of	 H.G.,	 267	 S.W.3d	 at	 124‐25	 (addressing	 standing	 as	 a	
component	 of	 subject	 matter	 jurisdiction	 the	 court	 said,	 “while	 equity	 may	 estop	 a	 party	
from	relying	on	a	mere	statutory	bar	to	recovery,	it	cannot	confer	jurisdiction	where	none	
exists.”).	
17		   See	In	re	Florence,	377	S.W.3d	837,	839	(Tex.	App.—Dallas	2012,	orig.	proceeding).	
18		  See	Daniels	v.	Pecan	Valley	Ranch,	Inc.,	831	S.W.2d	372,	382	(Tex.	App.—San	Antonio	
1992,	writ	denied).	
19		   See	id.	
20		  Daniels	 does	 not	 hold	 that	 the	 doctrine	 of	 invited	 error	 restores	 a	 Court’s	 plenary	
power	after	it	has	been	divested	of	jurisdiction.		Id.			

                                                 -5-
	      In	 addition,	 Tony	 has	 clean	 hands	 and	 equity	 favors	 him.	 	 Anderson	

invented	 Tony’s	 involvement	 in	 a	 “secret”	 conspiracy.21	 	 Anderson’s	

complaints	about	his	client’s	lack	of	communication	are	irrelevant	to	Tony,	an	

adverse	 party.	 	 Despite	 the	 claim	 of	 secrecy,	 Anderson’s	 attorney‐client	

communication	 dated	 October	 2,	 2014,	 indicates	 that	 his	 firm	 knew	 Shereen	

had	 a	 new	 attorney,	 knew	 the	 new	 attorney	 had	 drafted	 a	 Final	 Decree,	 and	

knew	that	Shereen	might	have	the	Final	Decree	entered.22		Anderson	further	

claims	not	to	have	withdrawn	from	the	litigation,23	but	he	attached	a	copy	of	

the	Order	allowing	him	to	withdraw	signed	on	October	22,	nine	days	before	he	

filed	 his	 Motion	 for	 New	 Trial.24	 Anderson’s	 claims	 of	 a	 “secret”	 divorce	

mischaracterize	his	actual	knowledge.		There	is	not	a	scintilla	of	evidence	that	

Tony	 “secretly	 obtained	 a	 divorce.”	 	 Anderson’s	 issues	 with	 Shereen	 and	 her	

new	 counsel	 were	 addressed	 by	 the	 trial	 court.25	 	 Tony	 was	 not	 involved	 in	

these	 issues.	 	 Thus,	 Anderson’s	 allegations	 are	 insufficient	 to	 create	 an	 issue	

where	none	actually	exists.			




21		   See	Response	at	p.	7.	
22		   See	Response	at	Appendix	7.	
23		   See	Response	at	p.	8.	
24		   See	Response	at	Appendix	15.	
25		   See	Response	at	Appendix	13,	p.	2.	

                                             -6-
       Accordingly,	even	if	equity	could	extend	jurisdiction—which	it	cannot—

an	extension	is	not	warranted	in	this	case.			

C.     Reframing	Anderson’s	Post‐Decree	Motions	Does	Not	Provide	the	
       Required	Vacation	of	the	Decree	Within	Thirty	Days.		

       Anderson’s	 final	 two	 arguments	 are	 that	 his	 post‐Decree	 motions:	 	 1)	

sought	a	substantive	change	and	were	motions	to	modify	the	judgment;	and	2)	

should	 be	 viewed	 as	 interventions.	 	 Both	 arguments	 fail	 in	 light	 of	 the	

requirement	that	the	trial	court	set	aside	the	judgment	within	the	thirty‐day	

window	of	its	plenary	power.26	

             1. It	is	Not	Necessary	to	View	Anderson’s	Post‐Decree	
                Motions	as	Motions	To	Modify	The	Judgment	Under	Rule	
                329b(g).	

       Anderson	 asks	 the	 Court	 to	 view	 his	 post‐Decree	 Motions	 under	 Rule	

329b(g)	as	proper	attempts	to	modify	the	Judgment,	thus,	extending	the	trial	

court’s	plenary	jurisdiction.		However,	the	argument	is	unnecessary	in	light	of	

Anderson’s	 Motion	 for	 New	 Trial.	 	 If	 Anderson	 were	 a	 party,	 his	 Motion	 for	

New	Trial	would	have	extended	the	trial	court’s	plenary	jurisdiction	without	

reframing	 his	 other	 post‐Decree	 Motions.	 	 Anderson	 provides	 no	 authority	

that	 a	 non‐party’s	 329b(g)	 motion	 would	 extend	 plenary	 jurisdiction.		

Fundamentally,	the	argument	does	not	change	the	issue—Anderson	was	not	a	


26		   See	Malone	v.	Hampton,	182	S.W.3d	465,	46	(Tex.	App.—Dallas	2006,	no	pet.).	

                                           -7-
party,	 and	 neither	 his	 Motion	 for	 New	 Trial	 nor	 his	 post‐Decree	 Motions	

extended	the	court’s	jurisdiction.			

                  2. Regardless	of	a	Formal	Post‐Decree	Intervention,	the	
                     Decree	Was	Not	Set	Aside	Within	Thirty	Days.	

             i.     Anderson	Is	Not	Shereen’s	Subrogee.	

       Anderson’s	 suggestion	 that	 he	 should	 be	 treated	 as	 if	 he	 were	 a	

subrogee	 of	 his	 client	 is	 in	 error.27	 	 Anderson	 did	 not	 assert	 a	 subrogation	

interest	and	no	statute	provides	him	with	a	subrogated	interest	in	his	client’s	

recovery;	therefore,	Ledbetter’s	holding	that	a	statutory	subrogee	had	a	right	

to	intervene	in	a	worker’s	litigation	does	not	support	Anderson’s	argument.28		

In	 Ledbetter,	 initially	 the	 issue	 was	 one	 of	 timing;	 the	 subrogee	 moved	 to	

intervene	 after	 the	 plaintiff,	 who	 had	 previously	 represented	 the	 subrogee’s	

interest,	filed	a	non‐suit	and	asked	the	court	to	award	the	subrogee	nothing.29	

The	 timing	 issue	 was	 withdrawn	 before	 appeal.30	 The	 rule	 in	 the	 case,	

however,	 provided	 that	 the	 subrogee,	 whose	 interests	 were	 adequately	

represented	and	then	suddenly	abandoned,	could	still	intervene	after	showing	



27		    See	Malone,	182	S.W.3d	at	468	(“[A]	plea	in	intervention	comes	too	late	if	filed	after	
judgment	and	may	not	be	considered	unless	and	until	the	judgment	has	been	set	aside.”)	
(Citation	omitted);	see	also	Response	at	p.	9.	
28		   See	Texas	Mut.	Ins.	Co.	v.	Ledbetter,	251	S.W.3d	31	(Tex.	2008).	
29		   See	Ledbetter,	251	S.W.	3d	at	36.			
30		   See	id.	 at	37.	

                                              -8-
that	there	is	neither	unnecessary	delay	nor	prejudice	to	existing	parties.31		The	

rule	 is	 narrowly	 tailored	 to	 subrogees.32	 	 Neither	 Ledbetter	 nor	 cases	 citing	

Ledbetter	 have	 extended	 the	 holding	 beyond	 that	 context.	 Four	 important	

points	prevent	applying	this	rule	to	this	case:		1)	Anderson	was	a	creditor,	not	

a	 subrogee	 to	 his	 client’s	 recovery;	 2)	 he	 did	 not	 intervene	 post‐trial,	 but	

instead	 he	 filed	 other	 motions	 and	 withdrew	 as	 counsel;	 3)	 he	 failed	 to	

demonstrate	that	his	actions	would	not	cause	unnecessary	delay	or	prejudice;	

and	4)	regardless	of	a	post‐Decree	intervention,	the	Decree	was	not	set	aside	

within	thirty	days	of	its	issuance.	

            ii.    Anderson’s	post‐Decree	Pleadings	are	not	Interventions.	

       Serna	 does	 not	 cure	 Anderson’s	 failure	 to	 properly	 intervene.33	 	 Serna	

addressed	pre‐judgment	pleadings	in	a	personal	injury	case	and	interpreted	a	

Notice	of	Lawyer’s	Lien	as	an	intervention.34		Serna	does	not	hold	that,	outside	

the	 contingent	 fee	 situation,	 post‐Decree	 pleadings	 can	 be	 re‐interpreted	 to	

create	plenary	jurisdiction	where	none	exists.			



31		   See	id.	at	36.	
32		    See	id.	(“But	when	a	subrogee's	interest	has	been	adequately	represented	and	then	
suddenly	abandoned	by	someone	else,	it	can	intervene	.	.	.”);	id.	(“a	party	has	an	absolute	
right	to	nonsuit	their	own	claims,	but	not	someone	else’s	claim	they	are	trying	to	avoid.”).	
33		   See	 Serna	 v.	 Webster,	 908	 S.W.2d	 487,	 491	 (Tex.	 App.—San	 Antonio	 1995)	 (“[A]n	
intervention	must	be	timely	filed;	in	any	case,	before	the	judgment.”).	
34		   See	id.	

                                              -9-
           iii.   There	 is	 no	 Exception	 to	 the	 Requirement	 That	 the	 Court	
                  Set	Aside	the	Final	Decree	Within	Thirty	Days.	

       Anderson	 suggests	 that	 this	 case	 fits	 into	 numerous	 exceptions;	

however,	none	of	his	citations	to	non‐domestic	decisions	squarely	address	the	

issue	currently	before	this	Court.		Malone35	squarely	addresses	the	facts,	and	

there	 is	 no	 factual	 dispute	 the	 Saad’s	 Decree	 was	 not	 set	 aside	 within	 thirty	

days	of	its	issuance.			

       Malone	 addressed	 an	 attorney’s	 fee	 dispute	 in	 domestic	 litigation.36		

Malone	 represented	 a	 party	 but	 moved	 to	 withdraw	 after	 his	 client	 entered	

into	 an	 agreement	 with	 her	 former	 spouse	 without	 Malone’s	 knowledge.37		

Malone	withdrew,	intervened	after	the	final	judgment,	and	filed	a	motion	for	

new	 trial.38	 	 The	 former	 spouse	 of	 Malone’s	 client	 sought	 sanctions	 for	

Malone’s	 Motion	 for	 New	 Trial.39	 	 Those	 sanctions	 were	 awarded	 more	 than	

thirty	 days	 after	 the	 final	 judgment.40	 	 The	 appellate	 court	 overturned	 the	

sanction	award	because	the	trial	court	lacked	plenary	jurisdiction	at	the	time	




35		   See	Malone,	182	S.W.3d	465.	
36		   See	Malone,	182	S.W.3d	at	467‐68.	
37		   See	id.	
38		   See	id.	
39
       See	id.
40		   See	id.	

                                            -10-
of	the	award.41		The	Malone	court	applied	Texas	Supreme	Court	law	and	held	

that	a	non‐party	may	intervene	post	judgment,	but	only	where	the	Decree	is	

set	aside	within	the	first	thirty	days.42		Therefore,	Malone’s	intervention	and	

Motion	 for	 New	 Trial	 had	 not	 extended	 the	 trial	 court’s	 plenary	 jurisdiction	

because	the	Decree	had	not	been	set	aside	within	thirty	days.43	

       Here,	 Anderson,	 a	 non‐party	 just	 like	 Malone,	 complains	 that	 his	 client	

acted	to	conclude	the	litigation	without	him.		After	the	Final	Decree,	Anderson	

withdrew	as	counsel	and	filed	a	Motion	for	New	Trial.		The	Malone	and	Saad	

facts	 are	 almost	 identical;	 the	 cases	 should	 have	 an	 identical	 outcome.		

Anderson’s	 attempt	 to	 extend	 the	 trial	 court’s	 plenary	 jurisdiction	 was	

unsuccessful	because	he	did	not	intervene	(before	or)	after	the	Decree	and	did	

not	 have	 the	 Decree	 set	 aside	 within	 thirty	 days.	 	 Therefore,	 the	 trial	 court’s	

rulings	that	followed	the	expiration	of	its	plenary	jurisdiction	are	void.	

                                 V.        CONCLUSION	

       Anderson’s	 arguments	 ask	 the	 Court	 to	 layer	 unsupported	 exception	

upon	 unsupported	 exception,	 and	 require	 the	 Court	 to	 ignore	 both	 the	 long	

standing	 principle	 that	 intervention	 is	 not	 permitted	 after	 a	 final	 judgment,	

41		   See	id.	at	468.	
42		    See	id.	(citing	First	Alief	Bank	v.	White,	682	S.W.2d	251,	252	(Tex.	1982)	(“[a]	plea	in	
intervention	comes	too	late	if	filed	after	judgment	and	may	not	be	considered	unless	and	
until	the	judgment	has	been	set	aside.”)	(emphasis	added).	
43		   See	id.	at	470.	

                                              -11-
and	that	a	Decree	cannot	be	set	aside	after	thirty	days,	certainly	not	by	a	non‐

party	or	as	a	matter	of	equity.		Anderson’s	challenge	is	without	merit.		

                                  VI.    PRAYER	

      For	the	foregoing	reasons,	and	those	contained	in	the	Petition	for	Writ	

of	 Mandamus,	 Tony	 R.	 Saad	 prays	 that	 this	 Court	 issue	 a	 writ	 of	 mandamus	

directing	 the	 Hon.	 James	 Martin	 to	 vacate	 the	 Rendition	 dated	 January	 11,	

2015,	and	the	Order	Granting	a	New	Trial	dated	January	15,	2015,	and	grant	

him	such	other	and	further	relief	in	law	and	in	equity	to	which	he	may	show	

himself	to	be	justly	entitled.	

	

                                          Respectfully	submitted,	
                                          	
                                          /s/	Darla	J.	Gabbitas	 	   	    	
                                          Jeffrey	W.	Hellberg,	Jr.	
                                          Texas	State	Bar	No.	00796738	
                                          jeff.hellberg@wickphillips.com	
                                          Darla	J.	Gabbitas	
                                          Texas	State	Bar	No.	24089458	
                                          darla.gabbitas@wickphillips.com	
                                          WICK	PHILLIPS	GOULD	MARTIN,	LLP	
                                          3131	McKinney	Ave.,	Suite	100	
                                          Dallas,	Texas	75204	
                                          (214)	692‐6200	(office)	
                                          (214)	692‐6255	(facsimile)	
                                          	
                                          ATTORNEYS	FOR	RELATOR	
                                          TONY	R.	SAAD	
                                          	
                                          	

                                        -12-
                  VII.       CERTIFICATE	OF	COMPLIANCE	

       Pursuant	 to	 Texas	 Rules	 of	 Appellate	 Procedure	 9.4,	 I	 hereby	 certify	
that,	absent	the	caption,	identity	of	parties	and	counsel,	statement	regarding	
oral	 argument,	 table	 of	 contents,	 index	 of	 authorities,	 statement	 of	 the	 case,	
statement	 of	 issues	 presented,	 statement	 of	 jurisdiction,	 statement	 of	
procedural	 history,	 signature,	 proof	 of	 service,	 certification,	 certificate	 of	
compliance,	 and	 appendices,	 the	 computer	 program	 used	 to	 prepare	 this	
document	prior	to	its	conversion	to	portable	document	format	calculates	the	
number	of	words	in	the	foregoing	reply	brief	as	2,530.	
	
	
                                           /s/	Darla	J.	Gabbitas	 _	      	       	
                                           Darla	J.	Gabbitas	
                                           	




                                          -13-
                          VII.   VERIFICATION



STATE OF TEXAS           §
                         §
COUNTY OF DALLAS         §


      Before me, the undersigned authority, on this day personally appeared
Darla J. Gabbitas, known to me to be the person whose name is subscribed
hereto, and who, being first duly sworn, upon oath stated that she is the
attorney for Tony R. Saad, that she has reviewed the foregoing Reply In
Support Of Petition For Writ Of Mandamus By Relator Tony R. Saad and
concluded that every factual statement in the reply is supported by competent
evidence.




     SUBSCRIBED AND SWORN TO before me on February k_, 2015.




               FRANCES WHISLER
                                   Notary Public in and for the State of Texas




                                    -14-
                      IX.       CERTIFICATE	OF	SERVICE	

	
      A	 true	 copy	 of	 the	 foregoing	 Reply	 In	 Support	 Of	 Petition	 For	 Writ	 Of	
Mandamus	By	Relator	Tony	R.	Saad	has	been	served	the	following	persons	by	
EFS,	on	February	6,	2015:	
	
Elizabeth	Hunter	                           James	Bell	
		ehunter@qslwm.com	                        		Jbell@fflawoffice.com	
Cynthia	Dunn	                               Friedman	Feiger,	LLP.	
		cdunn@qslwm.com	                          5301	Spring	Valley	Road,	Suite	200	
Quilling	Selander	Lownds	                   Dallas,	Texas	75254	
Winslett	&	Moser,	P.C.	                     	
2001	Bryan	Street,	Suite	1800	              Former	Counsel	for	Tony	R.	Saad	
Dallas,	Texas	75201	                        	
	                                           Jeffrey	O.	Anderson	
Counsel	for	Tony	R.	Saad	                   		jeff@ondafamilylaw.com	
	                                           Orsinger,	Nelson,	
Sam	Almasri	                                Downing	&	Anderson,	LLP.	
		sam@theamlawgroup.com	                    5950	Sherry	Lane,	Suite	800	
9330	LBJ	Freeway,	Suite	900	                Dallas,	Texas	75225	
Dallas,	Texas	75243	                        	
	                                           Former	 Counsel	 for	 Shereen	 Yasin	
Counsel	for	Shereen	Yasin	Saad	             Saad	and	Real	Party	in	Interest	
	
And	by	hand‐delivery	on	the	Respondent:	
	
The	Honorable	James	Martin	
254th	Judicial	District	Court	
600	Commerce,	Third	Floor	
Dallas,	Texas	75202	
	
RESPONDENT	
	
	
                                           /s/	Darla	J.	Gabbitas	 	        	     	
                                           Darla	J.	Gabbitas	
      	


                                          -15-
