Opinion issued March 14, 2017




                                      In The

                                Court of Appeals
                                      For The

                            First District of Texas
                              ————————————
                                NO. 01-16-00947-CV
                             ———————————
                       IN RE JERRY D. PATCHEN, Relator



                Original Proceeding on Petition for Writ of Mandamus


                            MEMORANDUM OPINION

      Relator, Jerry D. Patchen, filed a petition for writ of mandamus requesting

that we compel the trial court to vacate an order granting a new trial because the

order was entered outside of the trial court’s plenary power.1 We conditionally grant

the petition.


1
      The underlying case is Jerry D. Patchen v. Maria Carmen Gallegos and Margarito
      Rodriguez, cause number 1044658, pending in the County Civil Court at Law No.
      4 of Harris County, Texas, the Honorable Roberta Lloyd presiding.
                                    Background

      The underlying case involves a breach-of-contact action brought by Patchen

against real-parties-in-interest Maria Carmen Gallegos and Margarito Rodriguez

(together, “Real Parties”), a husband and wife who were former clients. On October

1, 2014, visiting judge Lamar McCorkle granted Patchen a default judgment against

Gallegos. Patchen then moved for a default judgment against Rodriguez, which

visiting judge Sharolyn Wood signed on October 5, 2015. The second default

judgment resolved all claims against all parties and notes, “The partial default

judgment as to Defendant Maria Carmen Gallegos is hereby made final and is

attached as Exhibit A.” On the same day the final judgment was signed, the trial

court clerk mailed copies of the judgments to Real Parties.

      On November 5, 2015—thirty-one days after Judge Wood signed the final

judgment—Real Parties filed a motion for new trial. Neither Gallegos nor Rodriguez

alleged that they did not receive notice of the final judgment.2 On January 8, 2016,

Judge Wood signed an order granting a new trial. Ten months later, on November 4,

2016, Patchen filed a motion to vacate the new trial order on grounds that it was void




2
      In a response to the mandamus petition, Real Parties claim that (1) they did not
      answer the motions for default judgment because “they believed the case had been
      dismissed and were not aware that the case had been reinstated” and (2) “they
      believed the bankruptcy case filed by Margario Rodriguez had stayed the entire
      case, and that [Patchen] could not proceed against them.” These arguments,
      however, fail to dispute that timely notice of the final judgment was received.
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for lack of jurisdiction because the motion for new trial was filed after the trial

court’s plenary power expired. The motion to vacate has not been ruled upon, and

Patchen asserts that the trial court refused to rule upon the motion, maintaining that

the visiting trial judge who issued the order must hear the motion and would not be

available for a hearing until after January 1, 2017.

      On November 30, 2016, Patchen filed a petition for writ of mandamus

requesting that this Court compel the trial court to vacate the new trial order or,

alternatively, compel the trial court to hear his motion to vacate. In conjunction with

the mandamus petition, Patchen filed a motion to stay the underlying trial set for

December 5, 2016 pending our determination of the petition. This Court issued an

order granting the stay and noted that the stay did not preclude the trial court from

ruling on Patchen’s pending motion to vacate the new trial order.

      On February 9, 2017, this Court requested that the parties provide a status

report regarding whether the motion to vacate had been ruled upon by either the trial

court or the visiting judge and whether any additional actions had been taken to

obtain a ruling. Patchen’s counsel filed a status update stating that Patchen had

contacted the trial court’s coordinator to request a hearing on his motion to vacate

but was informed that “the trial court will not take any action in this case until it

receives a mandate from this Court.”




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                                 Standard of Review

      Generally, to be entitled to mandamus relief, the relator must demonstrate that

the trial court abused its discretion and that it has no adequate remedy by appeal. See

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.

proceeding). A “trial court commits a clear abuse of discretion when it refuses to

exercise its discretion to hear and rule on pending motions.” Grant v. Wood, 916

S.W.2d 42, 45 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding). A trial court

also clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable

as to amount to a clear prejudicial error of law. Walker, 827 S.W.2d at 839. A trial

court has no discretion in determining what the law is or in applying the law to the

facts. Id. at 840. Thus, a clear failure by the trial court to analyze or apply the law

correctly will constitute an abuse of discretion. In re Allstate Cty. Mut. Ins. Co., 85

S.W.3d 193, 195 (Tex. 2002) (orig. proceeding). Mandamus relief is proper when

the trial court issues a void order, and the relator need not demonstrate the lack of

an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.

2000) (orig. proceeding); In re Flores, 111 S.W.3d 817, 818 (Tex. App.—Houston

[1st Dist.] 2003, orig. proceeding) (per curiam).




                                           4
                                      Discussion

      A trial court generally retains jurisdiction over a case for thirty days after it

signs a final judgment, during which time the trial court has plenary power to change

its judgment. See TEX. R. CIV. P. 329b(a) (“A motion for new trial, if filed, shall be

filed prior to or within thirty days after the judgment or other order complained of

is signed.”); TEX. R. CIV. P. 329b(d) (“The trial court, regardless of whether an

appeal has been perfected, has plenary power to grant a new trial or to vacate,

modify, correct, or reform the judgment within thirty days after the judgment is

signed.”); TEX. R. CIV. P. 329b(f) (“On expiration of the time within which the trial

court has plenary power, a judgment cannot be set aside by the trial court except by

bill of review for sufficient cause, filed within the time allowed by law . . .”). Certain

post-judgment motions, including a motion for new trial, if filed within this initial

thirty day period, extend the trial court’s plenary jurisdiction. See TEX. R. CIV. P.

329b(e). After expiration of plenary power, a trial court still may sign an order

declaring a prior judgment or order to be void as having been signed after expiration

of the court’s plenary power. See TEX. R. CIV. P. 329b(f); In re Martinez, 478 S.W.3d

123, 126 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding).

      In this case, the final judgment was signed on October 5, 2015 and no motion

was filed extending the trial court’s plenary power before it expired thirty days later

on November 4, 2015. See TEX. R. CIV. P. 329b. The motion for new trial filed on


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November 5, 2015 was untimely filed after the trial court had already lost plenary

power. Thus, the January 8, 2016 order granting the new trial was void because it

was entered 64 days after the court’s plenary power expired on November 4, 2016.

See 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.”); In re T.G.,

68 S.W.3d 171, 177 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (“Judicial

action taken after the trial court’s plenary power has expired is void.”). Although the

trial court maintained the power to declare the new trial order void as having been

signed after expiration of its plenary power, the trial court failed to issue such an

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

      In their response to the mandamus petition, Real Parties argue that Patchen

has not demonstrated that the trial court refused to act on his motion to vacate. The

record, however, contains an uncontradicted affidavit from Patchen detailing his

requests for a hearing on the motion and the trial court’s refusal to set a hearing

based upon its belief that the motion must be heard by the visiting judge who issued

the new trial order. Moreover, in response to this Court’s request for a status update,

Patchen averred that another attempt was made to set the motion for hearing, but the

trial court coordinator indicated that the trial court would not act unless mandated

by this Court. Accordingly, Patchen has demonstrated the trial court’s refusal to act

upon his pending motion to vacate the new trial order.


                                            6
      Real Parties further argue that Patchen consented to the trial court’s

jurisdiction because his motion to vacate was filed ten months after the new trial

order was signed. But it is well-established that a trial court’s lack of subject-matter

jurisdiction cannot be waived by failing to object or by participating in proceedings.

See In re Crawford & Co., 458 S.W.3d 920, 928, n.7 (Tex. 2015) (holding that party

cannot waive complaint regarding trial court’s lack of subject-matter jurisdiction);

Wilmer–Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001) (“As

a general rule, a court cannot acquire subject-matter jurisdiction by estoppel.”);

Glassman v. Goodfriend, 347 S.W.3d 772, 783 (Tex. App.—Houston [14th Dist.]

2011, pet. denied) (stating that subject-matter jurisdiction cannot be conferred by

consent or waiver).

                                      Conclusion

      Because the new trial order was void, we hold that the trial court abused its

discretion in failing to vacate the order and we need not determine whether Patchin

lacks an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d at 605;

In re Flores, 111 S.W.3d at 818. Accordingly, we conditionally grant the petition

for writ of mandamus and order the court to vacate its order granting a new trial. The

writ will only issue if the court fails to comply.

                                   PER CURIAM

Panel consists of Justices Keyes, Bland, and Huddle

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