Case Information
*0 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 1/14/2015 4:20:20 PM VIVIAN LONG CLERK *1 ACCEPTED 07-14-00420-CV SEVENTH COURT OF APPEALS AMARILLO, TEXAS 1/14/2015 4:20:20 PM Vivian Long, Clerk NO. 07-14-00420-CV In The Court of Appeals Amarillo, Texas In re JOSHUA EPPS, Relator. Original Proceeding from Cause No. 2013-508,395 140th District Court, Lubbock County, Texas Hon. Jim Bob Darnell, Respondent RELATOR’S MOTION FOR REHEARING M ULLIN H OARD & B ROWN , L.L.P. M C N AMARA L AW O FFICE
P.O. Box 2585 2108 Broadway
Lubbock, Texas 79408 Lubbock, Texas 79401
(806) 765-7491 – Phone (806) 747-8989 – Phone
(806) 765-0553 – Fax (806) 722-2553 – Fax
LDoss@MHBA.com – Email McNamara_LawOffice@yahoo.com
L AWRENCE M. D OSS (L EAD C OUNSEL ) W ILLIAM E. M C N AMARA , III
Of the Firm SBN 24012544 Of the Firm SBN 00788029
ATTORNEYS FOR RELATOR *2 TO THE HONORABLE COURT OF APPEALS:
Pursuant to T EX . R. A PP . P . 52.9, Relator, Joshua Epps (“Epps”) requests the
Court to reconsider its judgment and opinion of December 31, 2014, to withdraw
the former opinion, and to conditionally grant mandamus relief consistent Epps’
mandamus petition. In support of his Motion, Epps provides the following:
1. Laches serves as no valid basis for the Court’s refusal to con-
sider Epps’ issues that the February 2014 order is void. The Court of Appeals, sua sponte , denied Epps’ second mandamus petition
because it contends there has been an unjustified delay in bringing the original pro-
ceeding. (See Op. at 4). [1] While laches has been employed in other matters as a
way to deny a review of issues in an original proceeding, that is not a relevant dis-
cussion here. Epps’ first three issues before the Court showed why the district
court’s order is void as a matter of law. In fact, in one of those issues, Epps’ chal-
lenge regarding a lack of standing, goes directly to the district court’s jurisdiction to
sign the order. Void orders, of course, are subject to collateral attack, and voidness
due to a want of jurisdiction can be challenged with no time limit. Travelers Ins.
*3 Co. v. Joachim , 315 S.W.3d 860, 863 (Tex.2010); Wells Fargo Bank, N.A. v.
Ballestas , 355 S.W.3d 187, 191 (Tex. App.–Houston [1 Dist.] 2011, no pet).
When voidness is the basis for seeking mandamus relief, laches is not an is-
sue. On the one occasion laches was asserted by a real-party-in-interest as a basis
for avoiding mandamus review for a void order, the court of appeals rejected the
argument, holding:
Since mandamus relief in the present case is premised on the entry of a
void order, it would not serve the interests of justice or those of the
parties to invoke laches as an excuse to ignore that order, and thus to
allow the parties to expend further time and effort in connection with a
lawsuit that must ultimately be dismissed * * *”
Zimmerman v. Ottis , 941 S.W.2d 259, 262 (Tex.App.–Corpus Christi 1996, orig.
proceeding). This Court should consider the appropriateness of its decision in light
of the arguments presented in the petition for mandamus. [2]
PRAYER On these bases, Relator prays that this reconsider its judgment and opinion of
December 31, 2014, and to conditionally grant mandamus relief. Joshua Epps
prays for such other and further relief to which he is justly entitled.
*4 Respectfully s ubmitted, By: /s/ Lawrence M. Doss Lawrence M. Doss State Bar No. 24012544 Lawrence M. Doss Mullin Hoard & Brown, LLP 1500 Broadway, Ste. 700 Lubbock, Texas 79401 (806) 765-7491 tele (806) 765-0553 fax LDoss@mhba.com email -AND- William E. McNamara III State Bar No. 00788029 2108 Broadway Lubbock, Texas 79401 (806) 747-8989 tele (806) 722-2553 fax mcnamara_lawoffice@yahoo.com email Attorneys for Relator Joshua Epps Certificate of Service I certify that a true copy of the above was served on the Respondent, and
on each attorney of record via electronic filing on this 14 th day of January, 2015:
Samuel B. Silverman
Attorney for Adoption Covenant
Anna McKim
Attorney for Melissa Jimenez
/s/ Lawrence M. Doss Lawrence M. Doss *5 CERTIFICATE OF COMPLIANCE I, Lawrence M. Doss, attorney for Relator, certify that this document was
generated by a computer using Microsoft Word 2010, and that such word pro-
cessing program indicates that the word count of this document is 574 words.
TEX. R. APP. P. 9.4.
/s/ Lawrence M. Doss
[1] Citing In re Int'l Profit Assocs., Inc. , 274 S.W.3d 672, 676 (Tex. 2009 (original pro- ceeding to complain of forum selection clause) ; Rivercenter Assocs. v. Rivera , 858 S.W.2d 366 (Tex. 1993) (original proceeding to complain of jury waiver) ; In re Pendragon Trans. LLC , 423 S.W.3d 537, 540 (Tex. App.—Dallas 2014) (original proceeding regarding ap- pointment of master) ; International Awards v. Medina , 900 S.W.2d 934, 935-36 (Tex. App.—Amarillo 1995) (original proceeding involving severance of counterclaim and rul- ing on witness exclusion) .
[2] Relator acknowledges that appeals asserting claims of voidness in final judgments can be waived by the passage of time . Royal Indep. Sch. Dist. v. Ragsdale , 273 S.W.3d 759, 766 n. 7 (Tex.App.-Houston [14th Dist.] 2009, no pet.). But the Court’s December 31, 2014 opinion holds that the February 2014 order is not final because the court has not finally adjudicated the merits of the underlying dispute. (See Op. at 7, citing Hoa v. Dang , No. 01-13-00938-CV, 2014 Tex. App. LEXIS 1049, at *2 (Tex. App.—Houston [1st Dist.] January 30, 2014, pet. de- nied); Kiefer v. Touris , 197 S.W.3d 300, 302 (Tex. 2006)).