                                NUMBER 13-14-00003-CV

                                   COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


             IN RE CAS COMPANIES, LP INCORRECTLY NAMED
                 CLEAN AIR SOLUTIONS OF HOUSTON, LLC
                     AND BILL BOWLIN, INDIVIDUALLY


                          On Petition for Writ of Mandamus.


                                            OPINION

                 Before Justices Rodriguez, Garza, and Perkes
                        Opinion by Justice Rodriguez1

       Relators, CAS Companies, LP, incorrectly named Clean Air Solutions of

Houston, LLC, and Bill Bowlin, individually, filed a petition for writ of mandamus in the

above cause on January 6, 2014, requesting that we direct the trial court to vacate its




       1
          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
December 9, 2013 final judgment as void due to the expiration of the trial court’s plenary

power.2 We deny the petition for writ of mandamus.

                                        I. BACKGROUND

         Service Supply of Victoria, L.L.C. (“Service”) brought suit against relators for

alleged breach of contract, suit on sworn account, and breach of guaranty. Relators

counterclaimed for breach of contract and sought recovery of their attorney’s fees and

costs.       On September 4, 2013, after a bench trial, the trial court rendered a final

judgment in favor of Service for $3,416.23 for the remaining balance on the account,

$34,567.04 in attorney’s fees, and $7,201.85 in interest.

         On September 10, 2013, the trial court signed a different final judgment, this time

in favor of relators, awarding Service nothing for its claims and awarding relators

$42,978.05 for their attorney’s fees and costs. On September 13, 2013, the trial court

rendered an “Amended Final Judgment,” identical in substance to the second judgment,

but also stating that “[t]his judgment is FINAL and supersedes and vacates any prior

judgments rendered in this case.”

         On September 23, 2013, the trial court sent a letter to counsel for the parties

stating:

         Having reviewed all of the affidavits, motions[,] and proposed judgments, I
         am herewith vacating both the final judgment and Amended Final
         Judgment heretofore signed, effective today.

         Both parties are ordered to mediate the conflicting attorney fees dispute
         for half a day with a mediator of your choice. If you are unable to agree on
         a mediator, please advise the Court and I will select a mediator of my
         choice.


         2
           This original proceeding arises from trial court cause number 11-9-72239-C5 in the 267th
Judicial District Court of Victoria County, Texas, the Honorable Juergen Skipper Koetter presiding.


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       If you are unable to resolve the attorney fees dispute at mediation, I will
       set the matter for a hearing and I will resolve the dispute at that time.

       Please do not submit any further judgments or motions or briefs to the
       Court.

       On October 23, 2013, new counsel for Service made an appearance in the case

by sending a letter of representation to the District Clerk. This letter requested the

district clerk to “file the attached letter/order with the pleadings in this cause,” and

attached the trial court’s September 23, 2013 letter to the parties. Counsel’s letter

stated that “[t]he letter is an order that the previously entered judgments in the case are

now vacated and that the parties are to go to mediation on the issue of attorney’s fees.”

The letter further provided that “[t]he parties are in the process of retaining a mutually

agreeable mediator and will report to the court once the mediation has been

completed.” According to relators, on October 24, 2013, the clerk filed counsel’s letter

of representation and the attached September 23, 2013 letter from the trial court into the

record.

       On December 6, 2013, the parties mediated but were unable to resolve their

dispute. Relators urge that they participated in mediation “under protest and without

waiving the argument that the order to mediate was not valid.” The record before the

Court contains no pleadings or evidence supporting this assertion.

       On December 9, 2013, Service filed a motion for entry of judgment, and that

same day, the trial court, referring to the unsuccessful mediation, signed a judgment in

favor of Service for $3,416.23 for the remaining balance on the account, contractual

attorney’s fees of $34,567.04, and interest in the amount of $7,201.85. This judgment

provided, in relevant part:



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      On August 21, 2013, this case was called for trial. The parties appeared
      through their counsel and announced ready. Two previous judgment[s]
      were entered in this case and later, within thirty days of the second
      judgment, the Court entered an order vacating those judgments and
      ordering the parties to mediation. The parties have reported to the Court
      that the mediation session was unsuccessful and that they are unable to
      settle their disputes.

      This original proceeding ensued on January 7, 2014. That same day, this Court

requested a response to the petition for writ of mandamus from Service. On January

13, relators filed a supplemental appendix to their petition for writ of mandamus.

Service has now filed its response to the petition for writ of mandamus.

      By two issues, relators contend that: (1) the trial court abused its discretion when

it entered another final judgment on December 9, 2013, after its plenary power had

expired on October 13, 2013; and (2) the amended final judgment entered on

September 13, 2013 is a final, non-appealable judgment.           Service contends that

mandamus is not the proper remedy for relators’ complaints and that the letter signed

by the trial court on September 23, 2013, is a valid order that continued its plenary

power, therefore rendering the December 9, 2013 judgment valid.

                                II. STANDARD OF REVIEW

      Mandamus is proper if a trial court issues an order beyond its jurisdiction. See In

re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding); Bd. of Disciplinary

Appeals v. McFall, 888 S.W.2d 471, 472 (Tex. 1994) (orig. proceeding). Mandamus is

available to correct a void order even if the order was appealable and the party

requesting relief failed to pursue an appeal. Dikeman v. Snell, 490 S.W.2d 183, 186

(Tex. 1973) (orig. proceeding). Where an order is void, the relator need not show it did

not have an adequate appellate remedy and mandamus relief is appropriate. See In re



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Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Union Pac.

Res. Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding).

       Mandamus relief is appropriate when a trial court issues an order after its plenary

power has expired because the order is void. In re Brookshire Grocery Co., 250 S.W.3d

66, 68–69 (Tex. 2008) (orig. proceeding); In re Sw. Bell Tel. Co., 35 S.W.3d at 605.

Specifically, when a trial court erroneously reinstates a case after its plenary power has

expired, there is no adequate remedy by appeal and mandamus is the appropriate

remedy. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) (orig.

proceeding); S. Main Bank v. Wittig, 909 S.W.2d 243, 244 (Tex. App.—Houston [14th

Dist.] 1995, orig. proceeding). Relief may be granted to set aside an order issued on

the merits of a case after the trial court's plenary power expires. In re Daredia, 317

S.W.3d 247, 250 (Tex. 2010) (orig. proceeding).        Because mandamus is a proper

remedy in a case which alleges that a judgment is void, we proceed to the merits of

relators’ complaints.

                                       III. ANALYSIS

       The gravamen of relators’ complaint is that the trial court’s September 23, 2013

letter did not constitute an order that would extend the trial court’s plenary jurisdiction

over its September 13, 2013 final judgment. The trial court retains plenary power to

vacate, modify, correct or reform a judgment for a minimum of thirty days after signing it.

See TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d

308, 310 (Tex. 2000). Once a trial court’s plenary power has expired, “a judgment

cannot be set aside by the trial court except by bill of review for sufficient cause.” See

TEX. R. CIV. P. 329b(f).



                                            5
       In general, a letter from the trial court to counsel is typically not the type of

document that constitutes a judgment, decision, or order. See Goff v. Tuchscherer, 627

S.W.2d 397, 398–99 (Tex.1982); Perdue v. Patten Corp., 142 S.W.3d 596, 603 (Tex.

App.—Austin 2004, no pet.). However, a letter may constitute an order if it substantially

complies with the requisites of a formal order. See In re Newby, 266 S.W.3d 557, 558–

59 (Tex. App.—Amarillo 2008, orig. proceeding); Schaeffer Homes, Inc. v. Esterak, 792

S.W.2d 567, 569 (Tex. App.—El Paso 1990, no writ).                Specifically, a letter may

constitute an order if: (1) it describes the decision with certainty as to parties and effect;

(2) it requires no further action to memorialize the ruling; (3) it contains the name and

cause number of the case; (4) the court's diction is affirmative rather than anticipatory of

a future ruling; (5) it bears a date; (6) it was signed by the court; and (6) it was filed with

the district clerk. See, e.g., In re Newby, 266 S.W.3d at 558–59; Barron v. Vanier, 190

S.W.3d 841, 846 (Tex. App.—Fort Worth 2006, no pet.); Schaeffer Homes, Inc., 792

S.W.2d at 569; see also Cooksey v. State, No. 05–12–00301–CR, 2013 WL 1934943,

at **1–4 (Tex. App.—Dallas May 2, 2013, no pet.) (mem. op.). In examining these

factors, we focus on whether the trial court intended the letter to serve as an order. See

Gen. Elec. Capital Auto Fin. Leasing Servs., Inc. v. Stanfield, 71 S.W.3d 351, 355 (Tex.

App.—Tyler 2001, no pet.).       The difficulties inherent in analyzing these issues are

apparent in the breadth of cases construing these issues.            See, e.g., Barron, 190

S.W.3d at 846 (holding that a letter ruling was not an appealable order when it was not

filed and the trial court later rendered and filed a formal order); Perdue, 142 S.W.3d at

603 (holding that a letter to counsel purporting to grant a motion for new trial, even

though filed with the court clerk, was not a final order because it directed counsel to



                                              6
prepare an order, indicating trial court's intent that a formal order would follow); In re

Fuentes, 960 S.W.2d 261, 265 (Tex. App.—Corpus Christi, 1997, no writ) (holding that

a letter granting a new trial was not valid because it required future action and it was not

filed); see also In re Maddin, No. 02-08-00475-CV, 2009 WL 1099304, at *3 (Tex.

App.—Fort Worth Apr. 20, 2009, orig. proceeding) (mem. op.) (holding that a contempt

order in the form of a letter could not constitute an order enforceable by contempt when

it did not comply with the “requisites of formal entry of the decision rendered”).

        In the instant case, the trial court’s letter to the parties contained the name and

cause number of the case. The letter was dated and signed by the trial judge. The

letter affirmatively stated, “I am herewith vacating both the Final Judgment and

Amended Final Judgment heretofore signed, effective today.” The court’s diction is

affirmative rather than anticipatory. The letter stated that if the case did not settle at

mediation, the court would “set the matter for a hearing and I will resolve the dispute at

that time.” The letter required no further action from the parties in order to memorialize

the trial court’s ruling and did not request the parties to draft an order to fulfill the ruling.

Although the letter was not immediately filed when issued, it was later filed without any

apparent objection from relators.3 The trial court clearly intended the letter to serve as

an order insofar as the December 9, 2013 judgment refers to the letter as “an order

vacating those judgments and ordering the parties to mediation.” Moreover, although

relators contend that they participated in the mediation ordered by the letter “under


        3
            Relators contend that the September 23, 2013 letter was filed after the expiration of the trial
court’s plenary power, and thus, the filing was “irrelevant.” Whether or not a letter was filed with the
district clerk is one of the factors that we consider in determining whether or not the letter constitutes a
formal order of the trial court. See, e.g., In re Newby, 266 S.W.3d 557, 558–59 (Tex. App.—Amarillo
2008, orig. proceeding). Relators cite no authority for the proposition that the filing must occur within the
trial court’s period of plenary power, and accordingly, we consider the filing here as a relevant factor in
our analysis.

                                                     7
protest and without waiving the argument that the order to mediate was not valid,”

relators do not substantiate this allegation with any citations to the record. See Gen.

Elec. Capital Auto Fin. Leasing Servs., 71 S.W.3d at 355 (letter announcing a default

judgment did not constitute a final judgment when subsequent communications between

parties and trial court clerk were “strong indications that no one, including the trial judge,

regarded the September 16 letter as a judgment”).

       We conclude that the trial court’s letter of September 23, 2013 substantially

complied with the requisites of a formal order and vacated the judgments previously

rendered. Accordingly, the trial court’s plenary power did not expire on October 13,

2013, and the trial court had plenary jurisdiction to enter the December 9, 2013 final

judgment.

                                      IV. CONCLUSION

       The Court, having examined and fully considered the petition for writ of

mandamus and the response thereto, is of the opinion that relators have not shown

themselves entitled to the relief sought. Accordingly, the petition for writ of mandamus

is DENIED. See TEX. R. APP. P. 52.8(a).



                                                         NELDA V. RODRIGUEZ
                                                         Justice
Delivered and filed the 30th
day of January, 2014.




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