                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-10-00392-CV

                       IN RE JOHN A. MASON, JR. M.D.


                                Original Proceeding



                          MEMORANDUM OPINION


      John A. Mason, Jr. seeks a writ of mandamus compelling Respondent, the

Honorable J. D. Langley, Judge of the 85th District Court of Brazos County, to vacate an

October 5, 2010 “Order Clarifying [a] Previous Order” entered on April 28, 2010, which

is on its face a final judgment. We will conditionally grant mandamus relief.

      The underlying suit is a health care liability suit filed by Susan Corn against

Mason. Corn also named a hospital as co-defendant in her original and first amended

petitions. On March 23, 2010, Corn filed a notice of nonsuit with regard to her claims

against the hospital. A visiting judge signed an order on April 28: (1) dismissing Corn’s

claims against the hospital with prejudice; and (2) releasing the hospital from any

liability with regard to Corn’s claims. The April 28 order concludes, “ORDERED that
all relief not specifically granted in this final judgment is denied. The Court hereby

disposes of all issues and all parties in this final judgment.”

       Corn filed a motion for judgment nunc pro tunc or, alternatively, a petition for

bill of review on July 30. Respondent conducted a hearing on this pleading on August

25. At the conclusion of the hearing, Respondent announced that he would sign a

judgment nunc pro tunc because he considered the April 28 judgment to be ambiguous.

Respondent determined that: (1) the parties did not intend for the April 28 judgment to

be a final judgment; (2) the April 28 judgment “makes it clear” that the dismissal was

only as to the hospital because Mason is mentioned nowhere in the judgment; and (3)

the April 28 judgment was in fact an interlocutory order dismissing only the hospital.

       The Supreme Court addressed a similar situation in In re Daredia, 317 S.W.3d 247

(Tex. 2010) (per curiam) (orig. proceeding). There, American Express sued Daredia and

Map Wireless, Inc. on three credit card accounts. Map Wireless failed to answer, and

American Express sought a default judgment against that defendant. The judgment

recited Map Wireless’s default, awarded damages and attorney’s fees against Map

Wireless, and concluded, “All relief not expressly granted herein is denied.        This

judgment disposes of all parties and all claims in this cause of action and is therefore

FINAL.” See id. at 248.

       American Express filed a motion for judgment nunc pro tunc more than a year

later claiming that its counsel had made a typographical error in preparing the default

judgment. The trial court granted the motion, and the Fort Worth Court of Appeals

denied mandamus relief, holding that the default judgment was “ambiguous on its


In re Mason                                                                        Page 2
face” because it failed to address any of American Express’s claims against Daredia yet

recited that it was a final judgment. Id.

        Citing Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), the Supreme Court

first observed that the default judgment was unequivocally final on its face even though

the record indicated that this was not American Express’s intent when it sought the

default judgment. See Daredia, 317 S.W.3d at 249.

        [I]f the language of the order is clear and unequivocal, it must be given
        effect despite any other indications that one or more parties did not intend
        for the judgment to be final. An express adjudication of all parties and
        claims in a case is not interlocutory merely because the record does not
        afford a legal basis for the adjudication. In those circumstances, the order
        must be appealed and reversed.

Id. at 248-49 (quoting Lehmann, 39 S.W.3d at 206).

        The Court held that this was not a “clerical error” which could be corrected by

judgment nunc pro tunc. Id. at 249-50. Thus, the Respondent in that case abused his

discretion by rendering a corrective judgment nunc pro tunc after losing plenary

jurisdiction. Id. at 250.

        Mason’s case is indistinguishable. The language of the April 28, 2010 order is

“clear and unequivocal.” See id. at 248. Corn’s motion for judgment nunc pro tunc

cannot be construed as a motion for new trial because it was filed more than 30 days

after the April 28 order was signed.1 See TEX. R. CIV. P. 329b(a). Respondent signed the

October 5 order well after his plenary jurisdiction expired. Id. 329b(d).



1
       Even if this were a timely-filed motion for new trial, Respondent’s plenary jurisdiction would
have extended no further than August 11, 2010 (105 days after the April 28 order was signed), nearly 2
months before he signed the clarifying order. See TEX. R. CIV. P. 329b(c), (e); Philbrook v. Berry, 683 S.W.2d


In re Mason                                                                                            Page 3
        Respondent abused his discretion by signing the October 5 order after his

plenary jurisdiction expired.         Daredia, 317 S.W.3d at 250.          Mason has no adequate

remedy at law. Id. Therefore, we conditionally grant Mason’s mandamus petition. A

writ will issue only if Respondent fails to vacate the October 5, 2010 order within

fourteen days after the date of this opinion.



                                                                 FELIPE REYNA
                                                                 Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Petition conditionally granted
Opinion delivered and filed December 22, 2010
[OT06]




378, 379 (Tex. 1985) (per curiam); Curry v. Bank of Am., N.A., 232 S.W.3d 345, 352 (Tex. App.—Dallas 2007,
pet. denied).


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