                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                NO. 2-09-106-CV


IN RE PERVEZ DAREDIA                                                  RELATOR


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                             ORIGINAL PROCEEDING

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                         MEMORANDUM OPINION 1
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I. Introduction

      Relator Pervez Daredia filed a petition for writ of mandamus asking this

court to order the Respondent, Judge Doug Robison of the 393rd District Court,

to vacate the trial court’s order granting the motion for judgment nunc pro tunc

and the interlocutory default judgment of real parties in interest American

Express Centurion Bank and American Express Bank (jointly “American

Express”).     Daredia further requests that this court enter a finding that the




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          … See Tex. R. App. P. 47.4.
judgment signed on July 2, 2007, is a full and final judgment.       We deny

Daredia’s petition for writ of mandamus.

II. Factual and Procedural Background

      On May 10, 2007, American Express brought suit against Daredia and

Map Wireless, Inc. for monies owed on several American Express credit

accounts opened and utilized by Daredia and Map Wireless. On June 4, 2007,

Daredia filed an answer. Map Wireless did not file an answer. On June 23,

2007, American Express filed a motion for default judgment and a proposed

judgment. On July 2, 2007, the trial court signed a default judgment which

contained the language—“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.”

      On October 29, 2008, American Express filed a motion for judgment nunc

pro tunc in which it stated that its counsel had made typographical errors in

both the motion for entry of judgment and the default judgment.         It was

American Express’s contention that the July 2007 judgment should only have

disposed of Map Wireless and not Daredia. The motion further noted that Map

Wireless was the only defendant that had failed to answer and that no relief

had been sought against Daredia in the motion for entry of default judgment.




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American Express asked the trial court to enter a “nunc pro tunc interlocutory

default judgment” to dispose solely of its claims against Map Wireless.

      A hearing was set to take place on December 1, 2008, on American

Express’s motion for judgment nunc pro tunc, but an objection was made to the

visiting judge, and no hearing took place. Thereafter, on December 18, 2008,

Judge Vicki Isaacks, at that time the presiding judge of the 393rd District

Court, made a notation on the docket sheet indicating that the motion for

judgment nunc pro tunc was granted. Judge Isaacks did not sign an order on

the motion before her term expired on December 31, 2008. Respondent began

his term as judge of the 393rd District Court on January 1, 2009.

      Respondent held a hearing on February 22, 2009, on American Express’s

motion to sign an order on the motion for judgment nunc pro tunc. During the

hearing, Respondent stated that he believed that signing the order may be a

ministerial act because Judge Isaacks had already made a docket entry

indicating that she had granted the motion. Thereafter, on February 24, 2009,

Respondent signed an order granting the motion for judgment nunc pro tunc,

which vacated the July 2, 2007 default judgment, reinstated the case, and

ordered the parties to confer and submit a Level 2 scheduling order to the court.

That same day, Respondent also signed an interlocutory default judgment nunc

pro tunc granting American Express’s requested relief against Map Wireless.

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III. Analysis

      Daredia contends that Respondent erred by granting American Express’s

motion for judgment nunc pro tunc and by signing the interlocutory default

judgment. Specifically, Daredia argues that the trial court lacked jurisdiction to

vacate the final judgment because the February 24, 2009 orders were entered

long after the trial court lost plenary jurisdiction. See Tex. R. Civ P. 329b.

Daredia also argues that American Express was not entitled to the relief sought

because a judgment nunc pro tunc cannot be used to vacate a final judgment

and enter a new interlocutory judgment outside the trial court’s plenary

jurisdiction.   See Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex.

1997); Nguyen v. Woodley, 273 S.W.3d 891, 896 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). Daredia further argues that, even if a final judgment can

be vacated by a judgment nunc pro tunc, there is no evidence of a clerical error

in this case; therefore, the trial court erred by granting the motion for judgment

nunc pro tunc. See Tex. R. Civ. P. 316, 329b(f); Escobar v. Escobar, 711

S.W.2d 230, 231 (Tex. 1986). Lastly, Daredia contends the trial court erred

by not requiring American Express to provide clear and convincing evidence of

a clerical error.     See In re Broussard, 112 S.W.3d 827, 833 (Tex.

App.—Houston [14th Dist.] 2003, orig. proceeding).




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        American Express argues that the trial court was well within its discretion

to grant the motion for judgment nunc pro tunc because it was merely

correcting a clerical error. Specifically, American Express contends that the trial

court

        (a) recognized that the proposed judgment submitted by counsel
        contained an error because it purported to enter a default judgment
        against both defendants instead of just the corporate defendant, (b)
        then attempted to correct that error itself, but (c) committed its
        own error by failing to conform the entire order consistent with its
        obvious intention.

        When the trial court loses plenary power over a judgment, it also

generally lacks the authority to vacate the judgment.        See Tex. R. Civ. P.

329b(f); DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex. App.—Dallas 2008,

no pet.) (explaining that the trial court’s plenary power to grant a new trial or

to vacate, modify, correct, or reform a judgment is limited to a maximum of one

hundred and five days after the judgment is signed). Proceedings related to the

trial court’s judgment after its plenary power has expired are generally beyond

the trial court’s jurisdiction. See In re Dickason, 987 S.W.2d 570, 571 (Tex.

1998) (orig. proceeding); Coleman v. Sitel Corp., 21 S.W.3d 411, 413 (Tex.

App.—San Antonio 2000, no pet.) (holding that after the trial court’s plenary

power expired, the trial court had no jurisdiction to change or vacate its

judgment); Moore v. Brown, 993 S.W.2d 871, 874 (Tex. App.—Fort Worth



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1999, pet. denied) (stating that once “a trial court’s plenary power has expired,

it has no jurisdiction to modify or change its original judgment except by bill of

review”); see also State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.

1995) (“Judicial action taken after the court’s jurisdiction over a cause has

expired is a nullity.”). Here, we must determine if the July 2007 judgment was

a final judgment rendering the signing of the February 24, 2009 orders outside

of the trial court’s plenary power.

      The Supreme Court of Texas has concluded that a judgment without a

trial on the merits is not final “unless it actually disposes of every pending claim

and party or unless it clearly and unequivocally states that it finally disposes of

all claims and all parties.” See Lehmann v. Har-Con Corp., 39 S.W.3d 191,

205 (Tex. 2001); see also In re Burlington Coat Factory Warehouse of McAllen,

Inc., 167 S.W.3d 827, 830 (Tex. 2005) (orig. proceeding); In re Granite Shop,

No. 02-08-00410-CV, 2009 WL 485696, at *1, *3 (Tex. App.—Fort Worth,

Feb. 24, 2009, orig. proceeding).        Daredia contends that the July 2007

judgment is a final judgment because it contains language indicating that “[a]ll

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.”         The

quoted language, absent more, would appear to make that judgment final and

appealable.   See Lehmann, 39 S.W.3d at 206 (“A statement like, ‘This

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judgment finally disposes of all parties and all claims and is appealable,’ would

leave no doubt about the court’s intention.”); see also Burlington Coat, 167

S.W.3d at 830.

      American Express appears to argue that its counsel’s drafting errors and

Judge Isaacks’s edits rendered the July 2007 judgment ambiguous because the

judgment did not dispose of its claims against Daredia. In determining whether

a judgment is ambiguous, we apply the same rules we would use to ascertain

the meaning of other written instruments. See Lal v. Harris Methodist Fort

Worth, 230 S.W.3d 468, 474 (Tex. App.—Fort Worth 2007, no pet.) (“The

same rules of interpretation apply in construing the meaning of court orders as

in ascertaining the meaning of other written instruments.”). Here, the order

fails to address any of American Express’s claims against Daredia, yet it

contains language that clearly and unequivocally indicates that it is a final

judgment. See Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343,

350 (Tex. App.—San Antonio 2007, pet. denied). We agree with American

Express that the judgment is ambiguous on its face. See id.

      When it is not clear whether a summary judgment is final, we determine

finality from both the language of the judgment and the record in the case. See

Lehmann, 39 S.W.3d at 195. Here, the record resolves the ambiguity. On May

10, 2007, American Express brought suit against Daredia and Map Wireless for

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their failure to make payments on several credit accounts. The suit sought

judgment against Daredia and Map Wireless for $769,789.91 plus interest,

costs, and attorney’s fees. On June 4, 2007, Daredia filed his original answer.

Map Wireless failed to file an answer. On June 23, 2007, American Express

filed its motion for entry of default judgment in which it stated that Map

Wireless was in default for failing to appear and answer and sought judgment

against Map Wireless for the damages pled in its suit against Map Wireless.

American Express sought no relief against Daredia in the motion for entry of

default judgment, and the July 2007 default judgment, which was prepared by

American Express, does not speak to the claims against Daredia.

      Based on these facts, we conclude that the July 2007 judgment did not

resolve American Express’s claims against Daredia; therefore, the judgment was

interlocutory, and the trial court retains jurisdiction over this case.          See

Lehmann, 39 S.W.3d at 205; Granite Shop, 2009 WL 485696, at *3. Because

the trial court retains jurisdiction over this case, the trial court did not abuse its

discretion by signing the February 24, 2009 orders as the trial court was within

its plenary power to correct or modify the interlocutory judgment to clarify that

the claim against Daredia is still pending. See DeGroot, 260 S.W.3d at 662.

Because of our holding that the trial court retained jurisdiction over this case,

we need not address Daredia’s remaining arguments regarding the nature of the

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error in the July 2007 judgment. See Tex. R. App. P. 47.1. Accordingly,

Daredia’s petition for writ of mandamus is denied.




                                         ANNE GARDNER
                                         JUSTICE

PANEL: CAYCE, C.J.; GARDNER and MCCOY, JJ.

DELIVERED: October 20, 2009




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