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In re Merino

Court of Appeals of Texas, Fourteenth District

January 9, 2018

IN RE JACK H. MERINO, Relator

         ORIGINAL PROCEEDING WRIT OF MANDAMUS 125th District Court Harris County, Texas Trial Court Cause No. 2016-77418-A

          Panel consists of Chief Justice Frost and Justices Boyce and Jewell.

          MAJORITY OPINION

          William J. Boyce, Justice.

         Relator 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.

         I. Background

         Merino 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.

         Merino 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.

         Merino 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.

         Merino 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 petition.

         On 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.

         On June 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.

         In this 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 the order.

         II. Mandamus Standard of Review

         Generally, 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) (orig. ...


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