                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                       No. 07-16-00422-CV


                        MICHAEL C. MCDOUGAL, APPELLANT

                                               V.

   DELBERT AND CAROLYN MCDOUGAL AND D. MARC MCDOUGAL AND THE
                   MCDOUGAL TRUST, APPELLEES

                            On Appeal from the 99th District Court
                                   Lubbock County, Texas
            Trial Court No. 2015-514,759; Honorable William C. Sowder, Presiding

                                        October 10, 2018

                               DISSENTING OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant, Michael C. McDougal, contends a sanctions order issued against him

in favor of Appellees, Delbert McDougal, Carolyn McDougal, D. Marc McDougal, and the

McDougal Trust is void because the trial court lacked plenary power to enter the order.

The majority disagrees and affirms the issuance of the sanctions order. Because I believe

the trial court’s plenary power had lapsed and, therefore, the jurisdiction of the trial court

had expired, I respectfully dissent.
       As more fully discussed in the majority opinion, an inter-family dispute between

Appellant and Appellees led to the filing of this lawsuit in February 2015. After the

completion of some discovery, the parties reached a mutually acceptable settlement of

that dispute in April 2016. That settlement resulted in the entry of an agreed Order on

Petition for Modification of the McDougal Trust, dated April 29, 2016, and signed by the

Honorable David Gleason. The order was also signed by the parties individually and by

their respective attorneys. The agreed order was filed with the district clerk on May 2,

2016. Because the order of April 29 resolved all then-existing claims between all parties,

on May 4, 2016, the parties filed an Agreed Nonsuit with Prejudice, signed by the attorney

of record for each respective party, bearing a certificate of service dated April 27, 2016,

thereby effectively terminating this litigation for all purposes.


       However, on May 16, 2016, the attorneys for Delbert McDougal and Carolyn

McDougal moved to withdraw and the attorneys for D. Marc McDougal were substituted

in as their attorneys of record. On June 3, 2016, Appellees filed their Motion to Show

Cause, seeking discovery sanctions, which ultimately culminated in the entry of the order

the subject of this appeal. Following the filing of that motion, a hearing was held on

September 12, 2016. At that hearing, the trial court entered a formal Order of Dismissal

with Prejudice, stating that the order “disposes of all claims and all parties, other than

claims that survive a final judgment as a matter of law, and this Order is appealable.”

(Emphasis added).


       The order the subject of this appeal, entitled Order on Motion for Sanctions, was

not, however, signed until October 17, 2016, thirty-five days after the entry of the court’s

Order of Dismissal with Prejudice, one hundred seventy-one days after entry of the Order

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on Petition for Modification of the McDougal Trust (arguably a “final” order), and one

hundred and sixty-six days after the filing of an undisputed joint agreed nonsuit of all

proceedings. The question to be resolved in this appeal then is whether the trial court

retained jurisdiction on October 17, 2016, to enter the sanctions order in question.

Because I believe it did not, I dissent.


       ANALYSIS

       As stated by the majority, a trial court cannot order the imposition of sanctions after

its plenary power has expired; Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d

594, 596 & n.2 (Tex. 1996) (per curiam) (op. on reh’g), and whether a court retains plenary

power is a question of law we address de novo. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). The majority then relies upon precedent stating that it

is the signing of an order dismissing a case, not the filing of the nonsuit, that determines

when the clock starts to run on the trial court’s thirty-day plenary power. In re Bennett,

960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (per curiam). The facts leading up to

the order of sanctions in Bennett are, however, clearly distinguishable from the facts of

this case.


       In Bennett, counsel filed seventeen related lawsuits in a deliberate attempt to

circumvent the court-ordered random assignment of cases in a county with eight district

courts. When the seventeenth case was filed in the desired court, counsel ceased filing

cases and five days later filed sixteen notices of nonsuit in the cases that were filed in

other courts. Judge Bennett, judge of one of the courts where cases were nonsuited,

issued a sua sponte order directing counsel to appear and show cause why they should

not be held in contempt for intentionally violating local rules pertaining to the random

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assignment of cases. Counsel sought and obtained a writ of mandamus directing Judge

Bennett to vacate that order. On Judge Bennett’s application to the Texas Supreme

Court, the court held that appellate timetables do not run from the date a nonsuit is filed,

but rather from the date the trial court signs an order of dismissal. The court effectively

held that the filing of a notice of nonsuit does not deprive the trial court of jurisdiction to

sanction pre-nonsuit conduct.        That holding is entirely consistent with the generally

recognized principle that a notice of nonsuit does not cut off an existing claim. See TEX.

R. CIV. P. 162 (stating that a dismissal or nonsuit “shall not prejudice the right of an

adverse party to be heard on a pending claim for affirmative relief or excuse the payment

of all costs taxed by the clerk”) (emphasis added). However, the logic in Bennett and

similar cases has no application in a situation, such as here, where both parties file a

nonsuit after settling all claims.


       At the moment the joint motion for nonsuit was filed in this case, all claims and

causes of action were resolved. No other relief was being sought and the trial court was

not exercising any inherent authority to sanction pre-nonsuit conduct. Accordingly, I

would find that the trial court’s plenary power expired on June 3, 2016, thirty days after

the filing of the joint notice of nonsuit. While counsel might argue that the filing of the

Motion to Show Cause on June 3, 2016, extended the trial court’s plenary power, I would

point out that at no time did counsel file a motion for new trial or a motion to reinstate.


       Furthermore, the trial court did sign an order of dismissal on September 12, 2016,

and the order of sanctions was not entered within thirty days thereof. As such, even if the

filing of the motion for sanctions could have preserved the trial court’s jurisdiction until the



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court’s order of nonsuit, counsel failed to obtain an order within thirty days. As such, the

court’s plenary power would also have expired under this interpretation.


       Counsel’s motion for sanctions is nothing more than a post-settlement, post-final

order attempt to enforce the trial court’s original disposing order—the Order on Petition

for Modification of the McDougal Trust. Such a motion is more appropriately the subject

of a new suit to enforce the settlement, not a motion for discovery sanctions.


       CONCLUSION

       For these reasons, I would find that the trial court lacked subject matter jurisdiction

to enter the order of sanctions and I would reverse and render judgment dismissing

Appellees’ claims for want of jurisdiction.




                                                         Patrick A. Pirtle
                                                              Justice




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