In re M & O Homebuilders, Inc.
516 S.W.3d 101
| Tex. App. | 2017Background
- Paul Elizondo sued M & O Homebuilders and related parties and filed a lien on M & O’s property; M & O moved under Tex. Prop. Code § 53.160 to remove the lien and sought damages/attorney’s fees under the Fraudulent Lien Act.
- The trial court signed a March 11, 2016 order granting the motion, removing the lien, awarding attorney’s fees, and (mistakenly) containing language stating: “This judgment is final, disposes of all claims and all parties, and is appealable.”
- More than 30 days later the trial court signed a corrected/amended order (May 9, 2016) deleting the finality language; M & O sought mandamus to vacate that amended order as void.
- The primary legal question was whether the March 11 order was a final, appealable judgment (thus ending the trial court’s plenary power) or an interlocutory/statutory interlocutory order amendable nunc pro tunc.
- The court analyzed Lehmann’s finality test and Daredia, concluding that clear finality language renders an order final even if broader than intended, and that a post-plenary attempt to correct a judicial (not clerical) error is void.
- The court conditionally granted mandamus, directing the trial court to vacate its May 9 amended order because it was signed after plenary power expired and improperly attempted to correct a judicial error.
Issues
| Issue | Elizondo's Argument | M & O's Argument | Held |
|---|---|---|---|
| Whether the March 11 order was a final, appealable judgment | The order merely granted a §53.160 lien-removal motion (interlocutory); finality language was inadvertent and inapplicable to §53.160 proceedings | The March 11 order’s language ("final ... disposes of all claims and all parties") is unequivocal under Lehmann, so it is final | The March 11 order is a final judgment because its finality language is clear and unequivocal; Lehmann/Daredia control |
| Whether the trial court could sign the May 9 amended order after 30 days | The May 9 amendment corrected a clerical mistake; nunc pro tunc correction was proper | The court lacked plenary power if March 11 was final; a post-plenary correction of a judicial error is void | May 9 order was signed after plenary power expired and is void; mandamus warranted |
| Whether the error in the March 11 order was clerical or judicial | The inclusion of finality language was a clerical/form drafting mistake correctable nunc pro tunc | Once the court signed the written judgment, any mistake became part of the rendered judgment and thus a judicial error | The mistake was judicial (error in rendering), not clerical; correction required plenary power and could not be made later |
| Whether mandamus relief is appropriate | Opposes mandamus, arguing the trial court properly corrected a clerical error | Seeks mandamus because the amended order is void and trial court exceeded authority | Mandamus granted conditionally to vacate the May 9 amended order because it was void as entered after plenary power expired |
Key Cases Cited
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (definitive test for finality: order is final if it actually disposes of all claims/parties or clearly and unequivocally states finality)
- In re Daredia, 317 S.W.3d 247 (Tex. 2010) (judgment containing Lehmann-like finality language is effective even if broader than intended; cannot be corrected after plenary power expires)
- Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986) (nunc pro tunc corrections distinguish clerical from judicial errors by reference to the judgment actually rendered)
- Dikeman v. Snell, 490 S.W.2d 183 (Tex. 1973) (errors in a signed judgment that reflect the court’s rendition are judicial and not correctable as clerical)
- In re Sw. Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000) (mandamus may be appropriate where an order is void)
- In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) (mandamus standard: abuse of discretion and no adequate appellate remedy)