Justice David Schenk
en banc reconsideration of a panel order denying a writ of mandamus to vacate a trial court’s refusal to set aside a default judgment.
The underlying action in In Re Urban 8 LLC and Urban 8 Management LLC, Relators (No. 05-22-01022-CV) involved a slip-and-fall on a sidewalk in front of defendants’ place of business. Defendants, however, never received notice of the lawsuit and failed to answer. Plaintiff obtained a default judgment for more than $600,000, plus pre-judgment interest from an unspecified date. The final order of default did not identify itself as a final judgment and did not dispose of all the issues in the case, including the plaintiff’s claim for punitive damages. The order was dated November 18, 2021. Subsequently, defendants received notice of the suit and default and appeared, answered, and filed a motion for new trial on May 25, 2022, more than six months after the trial court’s order, well after its plenary authority had expired. On August 25, 2022, the trial court signed an order denying the motion for new trial and stating that its prior order was a final judgment that disposed of all parties, issues, and claims. Defendants sought a writ of mandamus to vacate that order.
Without explanation, a three-judge panel of the court of appeals denied mandamus relief. The court further declined to request a response to relator’s motion for rehearing en banc. Justice Schenk, joined by Justices Molberg, Pederson III, and Nowell, dissented. In the dissent’s view, the November 2018 order simply did not constitute a final judgment under SCOTX’s decision in Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001), which held that “a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Consequently, the majority’s action gave the trial court the “authority to determine that an order, not final on its face under the rule laid down in Lehmann, can be made so retroactively by the trial court itself after the time to appeal has run.”
The dissent proceeds to demonstrate that the majority’s decision runs afoul of a series of SCOTX decisions mandating the intermediate courts of appeal to “liberally” construe the rules “so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule” (citations omitted). Moreover, if the appellate court is uncertain about its jurisdiction over an order that does not appear to be a final judgment, it can abate the appeal to allow the trial court to clarify the issue. Conversely, there is no authority for what the trial court did in this case, leading the dissenters to warn that “[R]ecognizing such authority would work mischief and prompt parties to bombard the courts with protective notices of appeal to guard against subsequent ‘clarifications’ coming after the time to appeal as run, as in this case.” The dissenters would thus grant reconsideration and “direct the trial court to substantially entertain and dispose of the remaining claims, rather than pronounce on its earlier unstated intentions without invitation from a superior court.” Alternative, the dissent would treat the request for mandamus relief a bona fide attempt to invoke the court of appeals’ jurisdiction of the August 2022 order.
This is clearly no case of one justice crying in the wilderness. Is it our imagination or does the Dallas Court of Appeals continue to make decisions that lay themselves open to criticism like this? We can only hope that the next stop for this case will be SCOTX. As the dissent insists, the right to appeal should not be treated so cavalierly.
