IN RE JACK H. MERINO, Relator
PROCEEDING WRIT OF MANDAMUS 125th District Court Harris
County, Texas Trial Court Cause No. 2016-77418-A
consists of Chief Justice Frost and Justices Boyce and
William J. Boyce, Justice.
Jack H. Merino asks this court to issue a writ of mandamus
compelling the Honorable Kyle Carter, presiding judge of the
125th District Court of Harris County, to vacate his August
11, 2017 order granting Ivory Carter Enterprises, Inc. 's
motion for new trial. See Tex. Gov't Code Ann.
§ 22.221 (Vernon Supp. 2017); Tex.R.App.P. 52. We
conditionally grant the petition for writ of mandamus because
the challenged order is void.
purchased a house located at 4206 Rose Street, Houston,
Texas. Relator hired 1st Call Inspection Services, PLLC to
inspect the property. 1st Call Inspection Services issued a
report that identified no defects in the property. Property
owner Jerry M. Gibbs represented to Merino that the property
had undergone repairs by Ivory Carter Enterprises, Inc. A
year after Merino closed on the purchase of the property,
defects with the house became apparent.
sued Ivory Carter, 1st Call Inspection Services, and Gibbs on
November 8, 2016. Ivory Carter was never served with the
original petition. The affidavit of attempted service shows
that Merino's unsuccessful attempts to serve Ivory
Carter's registered agent with the original petition were
made on November 16, 17, and 19, 2016.
filed his first amended petition on December 7, 2016. The
record shows that service of process was effected on Ivory
Carter on December 30, 2016, by serving the Texas Secretary
of State with the first amended petition. Ivory Carter did
not answer the first amended petition.
added a claim for violations of the Texas Deceptive Trade
Practices Act ("DTPA") against Ivory Carter in his
second amended petition, filed on January 20, 2017. There is
no evidence in the mandamus record such as a return of
service or statement that no process returned to show that
Merino attempted to serve the Secretary of State or Ivory
Carter's registered agent with the second amended
January 24, 2017, Merino filed a motion for entry of default
judgment against Ivory Carter and a motion to sever the
judgment against Ivory Carter from the remainder of the suit
against Gibbs and 1st Call Inspection Services. Merino
obtained a default judgment against Ivory Carter on February
28, 2017. The trial court awarded Merino actual damages in
the amount of $49, 691. It also awarded $149, 073 as treble
damages for Merino's DTPA claims; pre- and post-judgment
interest; attorney's fees; and costs. The trial court
included language in the judgment severing the judgment
against Ivory Carter and assigning it a new cause number.
26, 2017, Ivory Carter filed a motion for new trial. In a
supporting affidavit, Gregory Carter, Chief Executive Officer
of Ivory Carter, attested that he received notice of the
lawsuit on June 19, 2017, when counsel for 1st Call
Inspection Services informed him that a default judgment had
been entered against Ivory Carter. On August 11, 2017, the
trial court held a hearing on Ivory Carter's motion for
new trial and signed the order granting the motion.
original proceeding, Merino asks this court to compel the
trial court to set aside the August 11, 2017 order granting
Ivory Carter's motion for trial as void because the trial
court's plenary power already had expired when it signed
Mandamus Standard of Review
to be entitled to mandamus relief, a relator must demonstrate
(1) the trial court clearly abused its discretion; and (2)
the relator has no adequate remedy by appeal. In re
Nat'l Lloyds Ins. Co.,507 S.W.3d 219, 226 (Tex.
2016) (orig. proceeding) (per curiam). A trial court abuses
its discretion when it signs an order after its plenary power
expires. In re Sw. Bell Tel. Co.,35 S.W.3d 602, 605
(Tex. 2000) (orig. proceeding) (per curiam). An order in
which the trial court purports to grant a motion for new
trial after its plenary power has expired is void. See In
re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008)