                                       NO. 12-19-00300-CV
                              IN THE COURT OF APPEALS
                 TWELFTH COURT OF APPEALS DISTRICT
                                          TYLER, TEXAS


 IN RE: JOHN DOGGETT, M.D.,                              §
 INDEPENDENT EXECUTOR OF THE
 ESTATE OF JERRY LLOYD                                   §       ORIGINAL PROCEEDING
 DOGGETT,
 RELATOR                                                 §

                                       MEMORANDUM OPINION
       John Doggett, M.D., independent executor of the Estate of Jerry Lloyd Doggett, filed this
original proceeding seeking a writ of mandamus directing Respondent to vacate a 2019 order. 1 We
conditionally grant the writ.


                                                BACKGROUND
       In November 2004, Marilyn Doggett Stasila, the Real Party in Interest, filed an application
to probate the will of Elwyn O. Doggett, her father, and issuance of letters testamentary. The will
was admitted to probate and Marilyn was appointed independent executor. In September 2014,
John, Marilyn’s nephew and the executor of his father Jerry’s estate, filed a petition for declaratory
judgment on grounds that Elwyn’s will needed to be construed with the will and codicils of
Elwyn’s wife, Mary Leone Langdon Doggett. Jerry is a beneficiary under the wills of Elwyn and
Mary, his parents. John also filed an application to remove Marilyn as independent executor for
gross misconduct or gross mismanagement, i.e., failure to pay property taxes that led to a tax
lawsuit. He alleged that Marilyn failed to furnish a requested accounting. In an amended
application, John also alleged that Marilyn failed to fund the testamentary trust under Elwyn’s will.
       The parties reached a mediated settlement agreement (MSA) in March 2015, which
awarded Marilyn certain real property, a parcel of which was awarded to John. The MSA provided


       1
           Respondent is the Honorable Janice Stone, Judge of the County Court at Law of Cherokee County, Texas.
for a survey of John’s parcel and set forth certain boundary line requirements, and required that
the parties execute special warranty deeds upon the survey’s completion and within fifteen days
from presentment. The MSA required the parties to use Thompson & Associates Surveyors.
Marilyn subsequently objected to the “Thompson Survey” and hired James Crawford with RMC
Surveying to conduct another survey. In December 2015, Marilyn filed a motion for judgment on
mediated settlement agreement and application for injunctive relief to enjoin binding arbitration.
The motion explained that a post-mediation dispute arose regarding the “Thompson Survey.” At
a hearing on January 7, 2016, Marilyn’s counsel, Chris Day, told Respondent that he did not
believe there were any contested issues because the parties “intend to accept what we call the
Crawford survey.” John’s counsel responded, “[W]e’ve agreed to accept that survey [the Crawford
Survey] as the survey that is – controls in the MSA.”
        Crawford signed a metes and bounds description on January 27. Marilyn filed an amended
motion for judgment on mediated settlement agreement on November 4. She alleged that despite
agreeing that the Crawford Survey would be used, John objected to the proposed allocation line in
the survey plat and requested that it be changed. On December 2, Respondent signed a judgment
on the MSA. The following paragraph of the judgment is marked out:


        THE COURT FINDS that on January 7, 2016, the parties announced in open court that they agreed
        not to use the survey and field notes prepared by Thompson & Associates Surveyors, as originally
        required per the MSA, and instead use the survey plat and field notes prepared by James Crawford
        of RMC Surveying dated October 8, 2015. Attached as Exhibit C, incorporated herein and made a
        part hereof, is a true and correct copy of the agreed-upon survey plat prepared by James Crawford
        of RMC Surveying dated October 8, 2015.



Respondent also marked out language ordering the parties to each pay half of the RMC surveying
fees.
        On April 6, 2018, Marilyn filed a motion for enforcement and contempt and, alternatively,
breach of contract under a Rule 11 agreement made in open court. She alleged that Respondent
had continuing, exclusive jurisdiction. According to Marilyn, John objected to the allocation line
of the property to be partitioned. Attached to her motion is a letter, dated January 30, 2018, from
Monty Shank, the general manager for the Upper Neches River Municipal Water Authority to
John’s attorney. The letter states that the Authority is in receipt of John’s counsel’s letter. Shanks
further states that the Authority wanted the parties to reach an agreement as to the waterfront

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allocation line, but it appears the parties could not agree. Accordingly, the Authority established
the allocation line “to be the red dash line on the attached Ground Condition Detail Sketch, dated
March 25, 2015 (Thompson & Associates, Tyler, TX).” Marilyn contended that John violated the
MSA, the Rule 11 agreement, and the judgment by rejecting the agreed upon survey and seeking
to have the boundary line moved. She further asserted breach of contract regarding the agreement
in open court and the MSA, for which she sought specific performance.
       At a hearing on Marilyn’s motion, Day testified that John agreed to use the Crawford
Survey. He did not recall any reservations, exceptions, or objections to using the survey. He
testified that John accepted the survey “as the controlling survey for purposes of the MSA.” He
did not believe that the MSA referenced an allocation line. The allocation line became an issue
after the January 2016 hearing and was discussed in his first amended motion, which Respondent
heard on December 2, 2016.
       Marilyn testified that she objected to the entire Thompson Survey, in part because of the
allocation line. At the end of the January 2016 hearing, she believed that the entire Crawford
Survey was accepted because John did not object to any line of it. This included the survey plat
with a proposed allocation line. She and Day both testified that Respondent’s 2016 judgment did
not include a finding that the allocation line in the Thompson Survey was correct. Marilyn stated
that the judgment reflects general acceptance of the Crawford Survey and contains no formal ruling
that the Crawford Survey is not controlling. She recalled a meeting during which Shank stated
that the Authority could deny access to the water front for both parties absent an agreement. She
took issue with Shanks’s statement that there was no agreement. She also learned that the
Authority received a copy of the Thompson Survey after the January 2016 hearing. Because of
John’s attorney’s letter to Shank, representing the absence of an agreement, and use of the
Thompson Survey, Marilyn believed John formally breached their agreement.
       John testified that he did not recall any agreement on the lake front allocation line. He
explained that the Thompson Survey stated a proposed agreed lake allocation line, but Marilyn
objected to the Thompson Survey. He did not recall any specific objection or written objection to
the allocation line itself. John testified that he instructed his counsel to agree to the Crawford
Survey, but not the allocation line. He denied either intending to agree to the Crawford Survey’s
allocation line at the January 2016 hearing or actually agreeing to that allocation line. He
acknowledged that the Crawford Survey was accepted for purposes of governing the MSA. He

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also acknowledged that his attorney sent a letter to Shank on January 24, 2018, which indicated
that no agreement existed as to the allocation line. He denied bypassing the agreement to have the
Authority set the line he wanted.
         Craig Adams, one of John’s attorneys, testified that the MSA never mentioned a lake
allocation line, the lake allocation line was never discussed until after the January 2016 hearing,
and no problem with the Thompson Survey’s lake allocation line was ever expressed to him.
Adams maintained that using the Crawford Survey for purposes of preparing the deeds was
unrelated to the lake allocation line. He acknowledged that the allocation line in the Thompson
Survey differs from that in the Crawford Survey. He testified that the MSA states, “The western
boundary of the property that borders Lake Palestine shall be divided equally with each party
getting approximately 129 feet of lake frontage.” According to Adams, both surveys do so.
Kenneth Raney, another of John’s attorneys, stated that he did not agree to accept the allocation
line on the Crawford Survey plat, but agreed to use it for purposes of what property John would
receive. He stated that the allocation line was never mentioned.
         In December, Respondent signed a letter ruling granting Marilyn’s requested relief. On
March 7, 2019, Respondent signed an order on Marilyn’s motion for enforcement and found that
(1) the parties agreed to use the Crawford Survey, (2) the “allocation line which extends out along
the same course as the boundary line between the two properties, N 58° 59’ 52” E, as set forth in
[the Crawford Survey] was clearly set forth in the survey at the time of the January 7, 2016 hearing
and that no contested issues were presented at that hearing,” and (3) the allocation line in the survey
is the correct one that the parties agreed to use. Respondent ordered that the allocation line
identified in the Crawford Survey is the allocation line to be used by the parties. Respondent
denied Marilyn’s request for attorney’s fees and travel costs and denied all relief not expressly
granted. The order contains no language holding John in contempt. This proceeding followed. 2




         2
           John originally filed a notice of appeal with this Court, which was transferred to the Sixth Court of Appeals
pursuant to a docket equalization order by the Texas Supreme Court. The appeal was dismissed for want of jurisdiction
because the Sixth Court determined that the 2019 order related to a contempt proceeding. See In re Estate of Doggett,
No. 06-19-00034-CV, 2019 WL 4124633 (Tex. App.—Texarkana Aug. 30, 2019, pet. filed) (mem. op.). The Sixth
Court likewise dismissed John’s petition for writ of mandamus because the transfer of the appeal did not confer
jurisdiction on the Sixth Court in a separate original proceeding. See In re Doggett, No. 06-19-00081-CV, 2019 WL
4132505 (Tex. App.—Texarkana Aug. 30, 2019, orig. proceeding) (mem. op.). John then filed the current original
proceeding with this Court.

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                                        PREREQUISITES TO MANDAMUS
         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623
(Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no
adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator has the
burden of establishing both prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.—
Tyler 2014, orig. proceeding.). Mandamus relief is appropriate when a trial court issues an order
after its plenary power expired. In re Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008);
In re Johnson, 557 S.W.3d 740, 742 (Tex. App.—Waco 2018, orig. proceeding).


                                              ABUSE OF DISCRETION
         John contends that the order is void as an improper collateral attack on the judgment, is
barred by res judicata, is a void advisory opinion, and is unsupported by legally sufficient evidence.
In his collateral attack argument, John complains that the 2019 order is void because (1)
Respondent’s plenary power expired thirty days after December 2, 2016, when the judgment was
signed, and (2) Marilyn seeks to avoid the binding force of the 2016 judgment. Because we
conclude that Respondent lacked jurisdiction to sign the 2019 order, we need not determine
whether the order is an impermissible collateral attack on the judgment. 3 See TEX. R. APP. P. 47.1.
         A trial court retains jurisdiction over a case for a minimum of thirty days after signing a
final judgment. Shackelford v. Barton, 156 S.W.3d 604, 606 (Tex. App.—Tyler 2004, pet.
denied); TEX. R. CIV. P. 329b(d). A trial court’s plenary power may be extended by a timely filed
post-judgment motion. Shackelford, 156 S.W.3d at 606-07; TEX. R. CIV. P. 329b(a), (e), (g).
When, as here, no party to a judgment files a motion that extends the trial court’s plenary power,
the trial court loses jurisdiction over the judgment thirty days after the judgment is signed and has
no power to set aside a judgment except by bill of review for sufficient cause. Shackelford, 156

         3
            Marilyn contends that John failed to preserve his complaint for appellate review by neglecting to first
present it in the trial court. The record reflects that John complained to Respondent that the 2018 letter ruling permitted
Marilyn to relitigate a previously asserted claim, which had been denied and dismissed with prejudice. Even so, an
order issued after the expiration of a trial court’s plenary power is void for lack of subject matter jurisdiction. Tex.
Dep’t of Public Safety v. LaRoussi, 192 S.W.3d 637, 640 (Tex. App.—Tyler 2006, no pet.). “Subject-matter
jurisdiction cannot be waived, and can be raised at any time.” Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008).
Importantly, this Court is obligated to consider jurisdictional issues even when not raised by the parties. See City of
Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (“Not only may a reviewing court assess jurisdiction for the first
time on appeal, but all courts bear the affirmative obligation ‘to ascertain that subject matter jurisdiction exists
regardless of whether the parties have questioned it’”).
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S.W.3d at 607; TEX. R. CIV. P. 329b(f). Once plenary power expires, the trial court may engage
only in certain specified activities with respect to its judgment, such as correcting clerical mistakes,
supervising post-judgment discovery, enforcing its judgment, or declaring a judgment void.
Custom Corporates, Inc. v. Security Storage, Inc., 207 S.W.3d 835, 839 (Tex. App.—Houston
[14th Dist.] 2006, no pet.); TEX. R. CIV. P. 329b(f).
        In the present case, the MSA states that the “parties agree to settle all claims and
controversies between them, asserted or assertable, in this case.” In the judgment, Respondent
found that the parties resolved their differences and agreed to distribution of the property of
Elwyn’s and Mary’s estates. The judgment further states as follows:


                IT IS THEREFORE ORDERED that the above-entitled and numbered cause, all claims,
       and causes of action be, and the same is hereby in all things dismissed with prejudice to the rights
       of the parties to reassert said causes of action, or any part thereof, and the costs of Court herein are
       taxed against the party incurring same, for which execution may issue.
                All other relief not set forth herein is DENIED.


Accordingly, the 2016 judgment finally disposes of all parties and claims between them. See
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001); see also Huston v. F.D.I.C., 800
S.W.2d 845, 848 (Tex. 1990) (“probate order or judgment is final if it conclusively disposes of
and is decisive of the issue or controverted question for which that particular part of the proceeding
was brought, even if the decision does not fully and finally dispose of the entire probate
proceeding”); Estate of Doggett, No. 06-19-00034-CV, 2019 WL 4124633, at *1 (Tex. App.—
Texarkana Aug. 30, 2019, pet. filed) (mem. op.) (noting that 2016 judgment is final); In re Harris
Cty. Hosp. Dist. Auxiliary, Inc., 127 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.] 2003, orig.
proceeding) (summary judgment order dismissing plaintiff’s cause of action with prejudice and
ordering that plaintiff take nothing showed finality).
       Because no party filed a post-judgment motion, Respondent’s plenary power expired thirty
days after she signed the judgment on December 2, 2016. See Shackelford, 156 S.W.3d at 607;
see also TEX. R. CIV. P. 329b(d). Marilyn maintains that, as the probate court, Respondent had
continuing jurisdiction regarding claims related to the estate. However, while Respondent’s
probate jurisdiction continues over the administration of the estate until the estate is disposed of,
that continuing jurisdiction does not alter her plenary power over final judgments. See Smalley



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v. Smalley, 436 S.W.3d 801, 806 n.9 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also In
re Jacky, 506 S.W.3d 550, 555 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding).
       And although a trial court has the authority to enforce its judgment after plenary power
expires, “the trial court may not issue an order that is inconsistent with the judgment or that
otherwise constitutes a material change in the substantive adjudicative portions of the judgment.”
Riggins v. Hill, 461 S.W.3d 577, 582 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); see
generally Rapid Settlements, Ltd. v. Symetra Life Ins. Co., 234 S.W.3d 788, 795 (Tex. App.—
Tyler 2007, no pet.); see also TEX. R. CIV. P. 308 (court shall cause its judgments and decrees to
be carried into execution). As previously stated, Respondent marked out language in the 2016
judgment (1) incorporating the Crawford Survey and (2) finding that on January 7, 2016, the
parties announced in open court that they agreed not to use the survey and field notes prepared by
Thompson & Associates, as originally required by the MSA, and to instead use the survey plat and
field notes prepared by RMC Surveying. Unlike the judgment, the 2019 order specifically finds
that (1) the Crawford Survey, attached and incorporated by reference to the order, is the survey
agreed to be used by the parties, (2) the “allocation line which extends out along the same course
as the boundary line between the two properties, N 58° 59’ 52” E, as set forth in [the Crawford
Survey] was clearly set forth in the survey at the time of the January 7, 2016 hearing and that no
contested issues were presented at that hearing,” and (3) the allocation line in the Crawford Survey
is the correct allocation line that the parties agreed to use. The 2019 order further requires the
parties to use the Crawford Survey’s allocation line. This comparison of the language between the
judgment and the order clearly demonstrates that the 2019 order is inconsistent with the 2016
judgment and materially changes substantive adjudicative portions of the judgment with respect
to the Crawford Survey.
       According to Marilyn, however, her alternate breach of contract claim “was not the subject
of the December 2, 2016, Judgment as no breach of the Rule 11 Agreement had yet occurred and
was not pending before the court when that Judgment was signed.” Marilyn states that she could
not have brought suit on breach of contract until January 24, 2019, when she says the breach
occurred. The record does reflect that Marilyn broached the issue of the allocation line before
Respondent signed the 2016 judgment. Her amended motion for judgment on the MSA, filed in
November 2016, states, “On January 7, 2016 the parties announced an agreement in open court
that the RMC survey plat would be used for the Marina Tract. Despite the agreement, John’s

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attorneys objected to a ‘proposed allocation line’ contained in the RMC survey plat and requested
that it be changed.” Yet, when Respondent signed the judgment in December 2016, which marked
out language that essentially required the parties to use the Crawford Survey despite the purported
Rule 11 agreement, Marilyn filed no post-judgment motions while Respondent retained plenary
power, nor did she appeal from the judgment.
       “When a dispute arises over a settlement agreement while the trial court still has
jurisdiction over the underlying action, any claim to enforce the settlement agreement should, if
possible, be asserted in the original court under the original cause number.” B.Z.B., Inc. v. Clark,
273 S.W.3d 899, 904 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The dispute in this case
apparently arose before plenary power expired and the omitted language in the judgment should
have alerted Marilyn to the need to file a post-judgment motion before expiration of Respondent’s
plenary power. Once Respondent’s plenary power expired, Marilyn, as the party seeking to
enforce the parties’ agreement regarding the allocation line, was required to pursue a
separate breach of contract action. See In re Vaishangi, Inc., 442 S.W.3d 256, 260 (Tex. 2014)
(orig. proceeding) (per curiam); see also Clark, 273 S.W.3d at 904. Marilyn could not reinvest
the trial court with subject matter jurisdiction by filing her motion for enforcement and alternative
breach of contract claim after plenary power expired. See Vaishangi, 442 S.W.3d at 260 (a party
can pursue a claim for breach of a settlement agreement, but party must pursue a separate claim
for breach of contract; when plenary power expires, a party cannot reinvest trial court with
jurisdiction by filing post-judgment motion to enforce); see also Univ. Gen. Hosp. L.P. v. Siemens
Med. Solutions USA, Inc., No. 01-12-00174-CV, 2013 WL 772951, at *3 (Tex. App.—Houston
[1st Dist.] Feb. 28, 2013, no pet.).
       We, therefore, conclude that Respondent abused her discretion by signing the 2019 order,
which is inconsistent with and materially changes substantive adjudicative portions of the 2016
judgment, after her plenary power expired. Because we so hold, we need not address John’s
remaining arguments. See TEX. R. APP. P. 47.1.


                                           DISPOSITION
       Having determined that Respondent abused her discretion by signing the 2019 order after
expiration of plenary power, we conditionally grant John’s petition for writ of mandamus and
direct Respondent to vacate the March 7, 2019 order. We trust that Respondent will promptly

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comply with this opinion and order. The writ will issue only if Respondent fails to do so within
ten days after the date of the opinion and order. Respondent shall furnish this Court, within the
time for compliance with this Court’s opinion and order, a certified copy of her order evidencing
compliance.
                                                              JAMES T. WORTHEN
                                                                 Chief Justice



Opinion delivered November 13, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                    (PUBLISH)



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                                COURT OF APPEALS
     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                        JUDGMENT


                                       NOVEMBER 13, 2019

                                       NO. 12-19-00300-CV



                  JOHN DOGGETT, M.D., INDEPENDENT EXECUTOR
                    OF THE ESTATE OF JERRY LLOYD DOGGETT,
                                     Relator
                                       V.

                                      HON. JANICE STONE,
                                           Respondent


                                      ORIGINAL PROCEEDING

               ON THIS DAY came to be heard the petition for writ of mandamus filed by John
Doggett, M.D., Independent Executor of the Estate of Jerry Lloyd Doggett; who is the relator in
appellate cause number 12-19-00300-CV and a party in trial court cause number 10698, pending
on the docket of the County Court at Law of Cherokee County, Texas. Said petition for writ of
mandamus having been filed herein on September 4, 2019, and the same having been duly
considered, because it is the opinion of this Court that the petition for writ of mandamus be, and
the same is, conditionally granted.



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              And because it is further the opinion of this Court that the trial judge will act
promptly and vacate her order of March 7, 2019; the writ will not issue unless the HONORABLE
JANICE STONE fails to comply with this Court’s order within ten (10) days from the date of this
order.
              James T. Worthen, Chief Justice.
              Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.




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