                                 NUMBER 13-16-00632-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


                            IN RE LORETTA YOUNG CANTU


                           On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Benavides
                Memorandum Opinion by Justice Rodriguez1

        Relator, Loretta Young Cantu, filed a petition for writ of mandamus in the above

cause on November 21, 2016. Through this original proceeding, relator seeks to compel

the trial court to vacate an order setting a hearing on a motion for summary judgment filed

by the real party in interest, Rolando Cantu. Relator contends that this order is void




        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
because it was issued after the expiration of the trial court’s plenary power. In essence,

relator contends that a summary judgment rendered previously in the case was the final

judgment in the underlying cause. We conclude that the earlier summary judgment was

interlocutory, and accordingly, we deny the petition for writ of mandamus.2

                                           I. BACKGROUND

        Rolando Cantu brought suit against relator and Horacio Cantu Jr. According to the

facts alleged in Rolando’s first amended petition, Rolando served as receiver for

Preferred Ambulance, Inc. (Preferred Ambulance), a company owned and operated by

relator and Horacio. Relator and Horacio divorced, and the divorce decree divided the

assets of Preferred Ambulance equally between them. The final decree of divorce

incorporated an “Agreement Incident to Divorce,” which provided that relator and Horacio

were jointly responsible for the federal income taxes for Preferred Ambulance for previous

years. In conjunction with the divorce, relator and Horacio also entered into a “Settlement

Agreement” which provided for global indemnification of relator, Horacio, and Rolando as

the receiver for Preferred Ambulance. According to Rolando’s petition, “[a]s part of the

Final Decree of Divorce, . . . [Rolando] was indemnified against any claims whatsoever

by . . . [relator and Horacio].”

        Further, according to the petition, Preferred Ambulance failed to file and pay its

payroll taxes to the United States Treasury for the tax period ending June 30, 2008.

Rolando alleged that the Internal Revenue Service “has made a demand for Preferred

Ambulance, Inc.’s June 30, 2008 payroll tax liability” for an outstanding balance of


          2 This petition for writ of mandamus arises from trial court cause number C-786-11-A in the 92nd

District Court of Hidalgo County, Texas, and the Honorable Luis M. Singleterry is the respondent. See
generally TEX. R. APP. P. 52.2. Horacio Cantu Jr., although named as a party in the pleadings below, did
not file a response or other pleading in this original proceeding.

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$137,503.75. Rolando asserted that he paid this amount to the United States Treasury

in response to its demand and sought reimbursement from relator and Horacio.

       Rolando thus brought claims against relator and Horacio for declaratory judgment,

breach of contract, quantum meruit, and promissory estoppel. He sought declaratory

relief and requested that the trial court find that he is “indemnified for all sums paid to the

United States Treasury and Internal Revenue Service as provided for in the Agreement

Incident to Divorce.” Rolando sought indemnification through terms of the Agreement

Incident to Divorce and the Settlement Agreement on grounds he was a “proper third

party beneficiary with rights to enforce the agreement of indemnification.” He argued that

he was entitled to recovery for the amounts paid as reimbursement. Finally, Rolando

asserted that he was entitled to reasonable and necessary attorney’s fees and costs

under sections 37.009 and 38.001 of the Texas Civil Practice and Remedies Code. See

TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West, Westlaw through 2015 R.S.) (stating

that the trial court “may” award costs and “reasonable and necessary attorney’s fees as

are equitable and just” in declaratory judgment actions); Id. § 38.001 (West, Westlaw

through 2015 R.S.) (providing that a person may recover attorney’s fees for various

claims, including a claim based on “an oral or written contract”). The petition stated that

the trial court had previously granted a declaratory judgment and attorney’s fees in

Rolando’s favor against both relator and Horacio; however, the trial court subsequently

granted relator’s motion for new trial. According to Rolando’s petition, the “Declaratory

Judgment remains in effect as to Horacio.” Relator answered the petition with a general

denial containing numerous affirmative defenses and several counterclaims.




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       During subsequent litigation, Rolando filed a no-evidence motion for summary

judgment against relator arguing that he was entitled to summary judgment on relator’s

eighteen affirmative defenses and five counterclaims on the grounds that these defenses

and counterclaims lacked evidentiary support. He further requested attorney’s fees of

$15,000 and prejudgment interest. Relator filed an objection and response to Rolando’s

no-evidence motion for summary judgment. Rolando filed a response and objections to

relator’s evidence.

       After a hearing, the trial court granted Rolando’s motion for summary judgment.

The trial court’s March 17, 2016 order on the motion for summary judgment states in its

entirety:

               On the 9th day of February, 2016, the Court heard the Motion for No
       Evidence Summary Judgment filed by Plaintiff/Counter-Defendant Rolando
       Cantu and the response thereto filed by Loretta Young Cantu and the
       Objections to Defendant’s Summary Judgment Evidence filed by
       Plaintiff/Counter-Defendant. After having reviewed the pleadings and
       hearing the argument of counsel, the Court finds that the Motion for No
       Evidence Summary Judgment should be granted and hereby enters the
       following Orders[.]

            IT IS ORDERED that the Objections to Defendant’s Summary
       Judgment Evidence filed by Plaintiff/Counter-Defendant are sustained.

             IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
       Motion for No Evidence Summary Judgment filed by Plaintiff/Counter-
       Defendant Rolando Cantu is granted in all respects.

              IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
       the affirmative defenses asserted by Defendant/Counter-Plaintiff Loretta
       Young Cantu, and listed below, are hereby denied with prejudice:

              a.      ratification;

              b.      waiver;

              c.      laches;



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      d.    statute of frauds;

      e.    pari delicto, wrongful acts/unlawful acts and unclean hands;

      f.    payment;

      g.    release;

      h.    res judicata;

      i.    estoppel;

      j.    estoppel in pais/equitable estoppel;

      k.    collateral estoppel;

      l.    judicial estoppel;

      m.    estoppel by contract;

      n.    quasi estoppel;

      o.    judicial admission;

      p.    offsets and credits;

      q.    failure to mitigate damages;

      r.    one satisfaction rule.


      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
counterclaims asserted by Defendant/Counter-Plaintiff Loretta Young
Cantu, and listed below, are hereby dismissed with prejudice:

      a.    unjust enrichment;

      b.    money had and received;

      c.    wrongful conversion;

      d.    breach of fiduciary duty;

      e.    exemplary damages.




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       The summary judgment does not contain a conclusion paragraph following this

language. That same day, the District Clerk of Hidalgo County provided the following

notice to the parties:

                In accordance with Rules of Civil Procedure 306(a)3; the clerk of the
        court shall immediately give notice to the parties or their attorney of record
        by first-class mail advising that the judgment or order was signed.

              A final judgment, SUMMARY JUDGMENT SIGNED BY JUDGE:
        LUIS M. SINGLETERRY was signed on 03/17/2016 and a copy may be
        purchased for $1 per page at the district clerk’s office located at: Hidalgo
        County Courthouse, 100 N. Closner, 1st Floor, Edinburg, Texas.

See TEX. R. CIV. P. 306a(3) (stating that the clerk of the court “shall immediately give

notice” when a “final judgment or other appealable order is signed”). Subsequently, in

May 2016, relator filed a no-evidence motion for summary judgment and a traditional

motion for summary judgment; however, the trial court clerk declined to set relator’s

summary judgment motions for hearing on grounds that the case had been concluded.

Relator alleges that she “relied upon the information from the docket entry, the court

clerk[,] and the Hidalgo County District Clerk’s Office that the case was no longer active

and took no further action.” However, in October 2016, Rolando thereafter filed a second

amended original petition and a traditional motion for summary judgment regarding his

claims against relator.   The trial court set Rolando’s summary judgment motion for

hearing. Relator filed an objection to setting the motion for hearing on grounds that the

trial court lacked jurisdiction because its plenary power had expired. The trial court

nevertheless maintained the setting.

       This original proceeding ensued. By two issues, relator contends that: (1) the trial

court abused its discretion by signing an order setting Rolando’s motion for summary

judgment for hearing after the trial court’s plenary power expired; and (2) mandamus relief

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is appropriate when the trial court issues a void order without the necessity of showing

that there is no adequate remedy by appeal. In support of her contention that the

summary judgment was final, relator relies on the March 17, 2016 order granting

summary judgment, the “final judgment” notice from the District Clerk, the trial court clerk’s

refusal to set her motions for hearing, and the “case summary” prepared at the time

summary judgment was granted which indicated that the case had been closed.

       This Court requested and received a response to the petition for writ of mandamus

from Rolando. Rolando contends that the summary judgment was interlocutory and the

trial court maintains jurisdiction over the case.

                                  II. STANDARD OF REVIEW

       Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., L.P., 492 S.W.3d

300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct

a clear abuse of discretion when there is no adequate remedy by appeal. In re Christus

Santa Rosa Health Sys., 492 S.W.3d 276 (Tex. 2016) (orig. proceeding); 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). The relator bears the

burden of proving both of these requirements. In re H.E.B. Grocery Co., L.P., 492 S.W.3d

at 302; Walker, 827 S.W.2d at 840. An abuse of discretion occurs when a trial court’s

ruling is arbitrary and unreasonable or is made without regard for guiding legal principles

or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex.

2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).

Similarly, a trial court abuses its discretion when it fails to analyze or apply the law

correctly. In re Nationwide Ins. Co. of Am., 494 S.W.3d at 712; In re Sw. Bell Tel. Co.,



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226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding). We determine the adequacy of an

appellate remedy by balancing the benefits of mandamus review against the detriments.

In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential

Ins. Co. of Am., 148 S.W.3d at 136.

       Mandamus relief is proper when the trial court issues a void order. See In re Sw.

Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Jacky, No. 01-16-

00236-CV, 2016 WL 4203421, at *3, __ S.W.3d __, __ (Tex. App.—Houston [1st Dist.]

Aug. 9, 2016, orig. proceeding); In re Flores, 111 S.W.3d 817, 818 (Tex. App.—Houston

[1st Dist.] 2003, orig. proceeding) (per curiam). Specifically as it concerns this case,

mandamus is proper if a trial court issues an order after its plenary power expires. In re

Sw. Bell Tel. Co., 35 S.W.3d at 605. Such an order is void and constitutes an abuse of

discretion. Id. Moreover, when a trial court has entered a void order, the relator need not

show that it lacks an adequate remedy by appeal, and mandamus relief is appropriate.

Id.; In re Jacky, 2016 WL 4203421.

                                    III. APPLICABLE LAW

       The issues raised in this original proceeding concern the trial court’s plenary power

and the finality of the trial court’s March 17, 2016 summary judgment order. A trial court

retains jurisdiction over a case for a minimum of thirty days after signing a final judgment.

TEX. R. CIV. P. 329b(d). During this time, the trial court has plenary power to change its

judgment. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex.

2000). Relator contends that the March 17, 2016 summary judgment is final and the trial

court’s plenary power expired thirty days after the judgment was signed.




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       The Texas Supreme Court has held that a judgment issued without a conventional

trial is final for purposes of appeal only if either (1) it actually disposes of all claims and

parties then before the court, regardless of its language, or (2) it states with unmistakable

clarity that it is a final judgment as to all claims and all parties. Farm Bureau Cnty. Mut.

Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015); Lehmann v. Har–Con Corp., 39

S.W.3d 191, 192 (Tex. 2001); see Thai Xuan Vill. Condo. Ass’n, Inc. v. Hien Luu, No. 14-

15-00873-CV, 2016 WL 6887344, at *2, __ S.W.3d __, __ (Tex. App.—Houston [14th

Dist.] Nov. 22, 2016, no. pet. h.). The supreme court explained that “[a]n order does not

dispose of all claims and all parties merely because it is entitled ‘final’, or because the

word ‘final’ appears elsewhere in the order, or even because it awards costs.” Lehmann,

39 S.W.3d at 205; see Farm Bureau, 455 S.W.3d at 163. The inclusion of a “Mother

Hubbard clause,” such as the statement—“all relief not granted is denied”—or similar

words, does not indicate that a judgment rendered without a conventional trial is final for

purposes of appeal. Lehmann, 39 S.W.3d at 203–04. Rather, there must be some other

clear indication that the trial court intended the order to completely dispose of the entire

case. Farm Bureau, 455 S.W.3d at 163; Lehmann, 39 S.W.3d at 205.

       As explained in Lehmann, “the language of an order or judgment can make it final,

even though it should have been interlocutory, if that language expressly disposes of all

claims and all parties.” Lehmann, 39 S.W.3d at 200. If the trial court’s intent to enter a

final judgment is “clear from the order, then the order is final and appealable, even though

the record does not provide an adequate basis for rendition of judgment.” Id. In that

case, “the judgment is final—erroneous, but final.” Id. In Lehmann, the Texas Supreme




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Court instructed appellate courts to review the record in the case and the language of the

order to determine whether the order is final. Id. at 205–06.

       To construe a judgment, we look first and foremost to the text of the judgment as

written, and, if it is unambiguous, we must give effect to the literal language used. See,

e.g., Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003); In re Piatt Servs. Int’l, Inc.,

493 S.W.3d 276, 281 (Tex. App.—Austin 2016, no pet.). If the judgment is ambiguous,

we should look also to the record as an aid in interpreting it. Shanks, 110 S.W.3d at 447–

48. We do not read isolated words or phrases in a vacuum; rather, we are to construe

the judgment as a whole so as to harmonize and give effect to all of its provisions. Id.

Moreover, “one cannot divorce text from context” when construing written instruments, as

“[t]he meaning of words read in isolation is frequently contrary to the meaning of words

read contextually in light of what surrounds them.” In re Office of the Att’y Gen., 456

S.W.3d 153, 155–56 (Tex. 2015) (orig. proceeding) (explaining that this is the rule “[w]hen

construing statutes, or anything else”).

                                       IV. ANALYSIS

       Relator contends that the trial court abused its discretion by signing an order

setting Rolando’s motion for summary judgment for hearing after the trial court’s plenary

power expired.    In contrast, Rolando contends that the March 17, 2016 summary

judgment was interlocutory and thus the trial court has retained jurisdiction over the

underlying case. Because there was no conventional trial on the merits and no statutory

right to appeal, we examine whether the judgment actually disposed of all claims and

parties before the court, regardless of its language. See Lehmann, 39 S.W.3d at 192.




                                            10
       The summary judgment expressly resolves relator’s affirmative defenses and her

counterclaims; however it does not address Rolando’s affirmative claims for relief against

relator or Rolando’s claims against Horacio, thus the summary judgment did not dispose

of all claims and parties before the trial court. See id. Furthermore, the summary

judgment does not state with “unmistakable clarity” that it is a final judgment, and in fact,

it contains no language regarding finality. See id. Accordingly, the summary judgment

was interlocutory. See id. at 200.

       We are cognizant that the present dispute arose because the district clerk sent

notice to the parties that a “final judgment” had been signed and the case summary

showed at that time that the case “was disposed in March, 2016.” These circumstances

are not determinative because, as stated previously, we examine the language of the

judgment and the record to determine finality.       See id. at 195; see, e.g., Philips v.

McNease, 467 S.W.3d 688, 693 (Tex. App.—Houston [14th Dist.] 2015, no pet.)

(“Because a final judgment does not have to be in any particular form, deciding whether

a judicial decree is a final judgment must be determined from its language and the record

in the case.”). In this regard, a docket-sheet entry ordinarily forms no part of the record

that may be considered; rather, it is a memorandum made for the trial court and clerk’s

convenience. Barnes v. Deadrick, 464 S.W.3d 48, 53 (Tex. App.—Houston [1st Dist.]

2015, no pet.); In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.—Houston

[1st Dist.] 2006) (orig. proceeding).     Docket-sheet entries are inherently unreliable

because they lack the formality of orders and judgments. Barnes, 464 S.W.3d at 53;

Ashton Grove L.C. v. Jackson Walker L.L.P., 366 S.W.3d 790, 795 (Tex. App.—Dallas

2012, no pet.); In re Bill Heard Chevrolet, Ltd., 209 S.W.3d at 315. A docket-sheet entry



                                             11
is generally considered insufficient to constitute a judgment or decree of the court and

cannot contradict, overrule, or take the place of a written order or judgment. Barnes, 464

S.W.3d at 53; Kalyanaram v. Burck, 225 S.W.3d 291, 303 (Tex. App.—El Paso 2006, no

pet.); In re Bill Heard Chevrolet, 209 S.W.3d at 315.

        Based on the language of the summary judgment and our review of the record, the

March 17, 2016 summary judgment was not a final judgment because it did not dispose

of Rolando’s claims against relator, and accordingly, the trial court retains plenary

jurisdiction over this matter. We overrule relator’s first issue, and having done so, need

not address her second issue.3 See TEX. R. APP. P. 47.1, 47.4.

                                              V. CONCLUSION

        The Court, having examined and fully considered the petition for writ of mandamus,

the response, and the applicable law, is of the opinion that the relator has not met her

burden to obtain mandamus relief. Accordingly, we LIFT the stay previously imposed in

this case and we DENY the petition for writ of mandamus. See id. R. 52.10(b) (“Unless

vacated or modified, an order granting temporary relief is effective until the case is finally

decided.”).

                                                                            NELDA V. RODRIGUEZ
                                                                            Justice

Delivered and filed the
8th day of December, 2016.




         3 In connection with relator’s first issue, relator contended that the “court clerk” refused to set

relator’s motions for summary judgment for hearing. Given Rolando’s position that the trial court case was
ongoing and given our resolution of this original proceeding, we trust that relator’s pleadings will be handled
appropriately in the future.

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