                                          NO. 12-11-00056-CV

                             IN THE COURT OF APPEALS

                    TWELFTH COURT OF APPEALS DISTRICT

                                              TYLER, TEXAS

IN RE:                                                  §

MARK DIXON,                                             §                ORIGINAL PROCEEDING

RELATOR                                                 §

                                                      OPINION
         In this original proceeding, Relator, Mark Dixon, seeks a writ of mandamus requiring the
trial court to rule on his ―Motion for Reconsideration and Modification of Order‖ or,
alternatively, to proceed to final judgment by trial or by the execution of a final judgment.1 For
the reasons set forth below, we deny Dixon‘s petition.


                                                   BACKGROUND
         Dixon filed suit against Robert Peltier and Peltier Enterprises, Inc. (the company or
collectively, Peltier). Dixon had been service manager for the company‘s Nissan dealership in
Tyler since May 15, 1991. In 1998, Dixon was named by the company as a key employee and
selected to become part of the company‘s long-term incentive compensation plan (incentive
plan). Robert Peltier, the company‘s president, was the administrator of the incentive plan. The
plan document stated that Dixon and other key employees would vest in the incentive plan ―only
after twenty (20) years of full-time, continuous employment with the Company by such
Participant, commencing with the Effective Date of the Plan.‖ In December 2008, Robert Peltier
terminated Dixon as part of a general reduction in force by the company.




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             The respondent is the Honorable Kerry Russell, Judge of the 7th Judicial District Court, Smith County,
Texas.
       In his suit, Dixon sought a declaratory judgment that he remained part of the incentive
plan, even after his termination from the company. Additionally, Dixon alleged causes of action
against Robert Peltier and the company for breach of contract, breach of fiduciary duty,
fraud/fraudulent inducement, and negligent misrepresentation. On April 7, 2010, following
discovery, the trial court signed an order stating in part that ―the Court has been presented with
an agreement entered into by and between Plaintiff and Defendant in this lawsuit which includes
a Stipulation of Facts and a schedule for submitting this case to the Court by mutual motions for
summary judgment.‖ By signing the order, the court approved this agreement.
       On April 20, Peltier filed a motion for summary judgment, which stated in part that they
were
       entitled to a summary judgment that declares that Plaintiff was not a Participant in the Plan and
       secondarily that he was an at-will employee who could be terminated at will, and since he was
       terminated prior to his being vested in the Plan, he is no longer a Participant in the Plan and has no
       property interest in it.


In their prayer, Peltier requested that ―judgment be rendered for Defendants and against Plaintiff
denying Plaintiff any recovery against Defendants.‖ Peltier relied solely upon the stipulation
between the parties as evidence for their motion.
       Three days later, Dixon filed his motion for partial summary judgment. In the motion,
Dixon not only sought a declaration of his rights under the incentive plan, but also alleged that
Robert Peltier made certain misrepresentations to him. As part of his summary judgment
evidence, Dixon attached his affidavit containing a history of his dealings with Robert Peltier
and the company, which included a description of the alleged misrepresentations. Peltier filed a
response to Dixon‘s motion for partial summary judgment in which they attached the affidavit of
Sherry Mead, another key employee who was part of the incentive plan. Mead swore to facts
rebutting Dixon‘s affidavit.
       Following submission of these motions for summary judgment and responses, the trial
court on June 4 entered an order granting Peltier‘s motion for summary judgment. In its final
paragraph, the order stated ―IT IS, THEREFORE, ORDERED ADJUDGED AND DECREED
that Defendants‘ Motion for Summary Judgment is hereby GRANTED in its entirety and that
Plaintiff‘s causes of action as to Defendants are hereby dismissed with prejudice.‖ Also on the
same date, the trial court entered an order denying Dixon‘s motion for partial summary
judgment.

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        On June 15, Dixon filed a ―Motion for Reconsideration and Modification of Order‖ in
which he asked the trial court to set aside both of the June 4, 2010 orders. Alternatively, he
requested that the court modify its order granting Defendants‘ Motion for Summary Judgment
signed on June 4, 2010, and specifically asked the court to delete the language stating that
―Plaintiffs‘ causes of action as to Defendants are hereby dismissed with prejudice.‖ Peltier filed
a response to Dixon‘s motion on June 23 and with it included a proposed final judgment for the
trial court to consider. Following the signing of its June 4 orders, the trial court took no further
action in this case. On February 23, 2011, Dixon filed this original mandamus proceeding with
this court.


                                 PREREQUISITES TO MANDAMUS
        A writ of mandamus will issue only if the trial court has committed a clear abuse of
discretion and the relator has no adequate remedy by appeal. In re Cerberus Capital Mgmt.,
L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). A clear abuse of discretion occurs
when an action is so arbitrary and unreasonable as to amount to a clear and prejudicial error of
law. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding).


                                      ABUSE OF DISCRETION
        To determine whether Dixon has satisfied the first prerequisite to mandamus, we first
consider Dixon‘s alternative argument that the trial court abused its discretion by failing to sign
an appealable final judgment. We then address Dixon‘s arguments that the trial court abused its
discretion in failing to rule on his motion for reconsideration and by failing to proceed to a final
judgment.
        Peltier contends that the trial court did not abuse its discretion because the court‘s order
granting Peltier‘s summary judgment motion dismissed Dixon‘s causes of action with prejudice.
Therefore, Peltier urges that the order was final for purposes of appeal.
Finality of June 4, 2010 Order
        A judgment is final for purposes of appeal if it disposes of all pending parties and claims
in the record, except as necessary to carry out the decree. Lehmann v. Har-Con, Corp., 39
S.W.3d 191, 195 (Tex. 2001). But the language of an order or a judgment can make it final,
even though it should have been interlocutory, if that language expressly disposes of all claims

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and all parties. Id. at 200. The intent to finally dispose of the case must be unequivocally
expressed in the words of the order itself. Id. If that intent 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. So, for example, if a defendant moves for summary judgment on only one of
the four claims asserted by the plaintiff, but the trial court enters judgment that the plaintiff take
nothing on all claims asserted, the judgment is final—erroneous, but final. Id.
        Granting more relief than the movant is entitled to makes the order reversible, but not
interlocutory. Id. at 204. Language that the plaintiff take nothing by his claims in the case, or
that the case is dismissed, shows finality if there are no other claims by other parties. Id. at 205.
If the language of the order is clear and unequivocal, it must be given effect despite any other
indications that one or more parties did not intend for the judgment to be final. Id. at 206. An
expressed adjudication of all parties and claims is not interlocutory merely because the record
does not afford a legal basis for the adjudication. Id. ―To determine an issue of finality, we are
directed to define the intention of the trial court ‗from the language of the decree and the record
as a whole, aided on occasion by the conduct of the parties.‘‖ Castle & Cooke Mortg., LLC v.
Diamond T Ranch Dev., Inc., 330 S.W.3d 684, 688 (Tex. App.–San Antonio 2010, no pet.)
(quoting Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 277 (Tex. 1996)).
        Here, the court‘s April 7 order stated that the parties would be ―submitting this case to the
court by mutual motions for summary judgment.‖ The prayer in Peltier‘s motion for summary
judgment asked that ―judgment be rendered for Defendants and against Plaintiff denying Plaintiff
any recovery against Defendants.‖ On June 4, 2010, the trial court signed an order denying
Dixon‘s motion for partial summary judgment and another order granting Peltier‘s motion for
summary judgment. On its face, the trial court‘s order granting Peltier‘s motion reflects finality
by its statement that the motion for summary judgment is ―hereby granted in its entirety and . . .
Plaintiff‘s causes of action as to Defendants are entirely dismissed with prejudice.‖ Further, the
trial court appears to be emphasizing that Dixon‘s causes of action are dismissed by using the
term ―with prejudice.‖2
        Dixon specifically asked the court to remove the language ―Plaintiff‘s causes of action as
to Defendants are hereby dismissed with prejudice‖ from its order granting Peltier‘s summary

        2
         We also note that the trial court never signed the proposed final judgment submitted by Peltier on June 23.
It would make sense for the trial court to ignore this proposed final judgment if it had already entered a final
judgment on June 4.

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judgment motion. This is some indication that Dixon did not intend for the order to be final.
However, the language of the order is clear and unequivocal, and it must be given effect. See
Lehmann, 39 S.W.3d at 206 (clear and unequivocal language of finality must be given effect
despite indications that one or more parties did not intend for judgment to be final).
Accordingly, we hold that the language of the order and the record as a whole establish that the
June 4, 2010 order granting Peltier‘s motion for summary judgment was final for purposes of
appeal.
Failure to Rule on Motion for Reconsideration
          A motion for reconsideration is equivalent to a motion for new trial. Dayco Products,
Inc. v. Ebrahim, 10 S.W.3d 80, 83 (Tex. App.–Tyler 1999, no pet.). Trial courts have not been
required to rule on motions for new trial because the passage of time may serve to overrule a new
trial motion by operation of law. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 28 (Tex. 1994); see
also TEX. R. CIV. P. 329b(c) (―In the event an original or amended motion for new trial . . . is not
determined by written order signed within seventy-five days after the judgment was signed, it
shall be considered overruled by operation of law on expiration of that period.‖); Hamilton v.
Williams, 298 S.W.3d 334, 337 (Tex. App.–Fort Worth 2009, pet. denied) (―A trial court . . .
does not abuse its discretion by not ruling on a motion [for new trial] and by allowing the motion
to be overruled by operation of law.‖). Because the trial court had no duty to rule on Dixon‘s
motion for reconsideration, it did not abuse its discretion by not ruling on the motion and
allowing it to be overruled by operation of law.
Failure to Take Further Action in the Case
          Dixon contends that the trial court abused its discretion by not doing anything further in
the case after entering its June 4 order granting Peltier‘s motion for summary judgment. His
complaint, however, is based on the assumption that the trial court‘s June 4 order granting
Peltier‘s motion for summary judgment was not final and appealable. Therefore, he argues that
the trial court should be directed to proceed to final judgment, either by trial or by the execution
of a final judgment. We have held that the June 4, 2010 order granting Peltier‘s motion for
summary judgment is a final, appealable order. We have also held that the trial court was not
required to rule on the motion for reconsideration because it would be overruled by operation of
law if the court took no action on it within seventy-five days. Consequently, no further action is
necessary for the trial court to dispose of the case.

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                                                    DISPOSITION
         Dixon has not shown that the trial court has failed to proceed to a final judgment in the
case or that it had a duty to rule on his motion for reconsideration. Consequently, he has not
shown an abuse of discretion by the trial court. Because Dixon has not shown an abuse of
discretion, we need not address whether he has an adequate remedy by appeal. Dixon‘s petition
for writ of mandamus is denied.




                                                                JAMES T. WORTHEN
                                                                   Chief Justice




Opinion delivered August 10, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)


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