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In re Thompson

Court of Appeals of Texas, First District

May 8, 2018

IN RE CHARLES THOMPSON AND CINDY THOMPSON, Relators

          Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Justices Keyes, Brown, and Lloyd.

          OPINION

          Harvey Brown Justice

         Relators, Charles and Cindy Thompson, have filed a petition for writ of mandamus challenging the denial of their motion to dismiss real party in interest's motion to set aside a default judgment signed in the underling case over ten years earlier.[1] Because the trial court lacked plenary power to consider a motion to vacate the default judgment, we conditionally grant the writ.

         Background

         Charles and Cindy Thompson purchased real property at a tax sale based on a default tax judgment signed in 2005. In 2016, Mae Landry, a purported heir of one of the defendants in the default judgment for unpaid taxes, filed a "Motion to Set Aside Default Judgment" in the same case and under the original cause number, claiming that neither the defendants nor their heirs or assigns received notice of the tax suit. Because the Thompsons were not parties to the underlying tax suit, they intervened to protect their title to the property obtained by the sale. The Thompsons filed a motion to dismiss for want of jurisdiction, arguing that (1) the trial court lacked plenary power to alter its final default judgment issued over ten years earlier and (2) Landry's motion to set aside the default judgment does not confer jurisdiction.

         After conducting an evidentiary hearing, the trial court denied the Thompsons' motion to dismiss, concluding that it had authority to decide the motion to set aside the default judgment.[2] In denying the motion to dismiss, the trial court found that "the default judgment was void and subject to collateral attack." The Thompsons filed a petition for writ of mandamus challenging the denial of their motion.

         Standard of Review

         Mandamus relief is available when a relator demonstrates both that (1) the trial court clearly abused its discretion or violated a duty imposed by law and (2) there is no adequate remedy by way of appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839- 40 (Tex. 1992) (orig. proceeding). Mandamus relief is proper when the trial court issues a void order, and, in that circumstance, the relator need not demonstrate the lack of an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Flores, 111 S.W.3d 817, 818 (Tex. App.- Houston [1st Dist.] 2003, orig. proceeding).

         Landry's Motion to Dismiss the Mandamus Petition

         Landry has filed a motion to dismiss the mandamus petition on the basis that the record provided by the Thompsons was inadequate because it failed to include exhibits introduced at the evidentiary hearing. We deny Landry's motion to dismiss because (1) Landry's argument that the record is inadequate to support mandamus relief pertains to the merits of the petition and is not a basis for dismissal and (2) the Thompsons subsequently filed the hearing exhibits. Accordingly, we consider the merits of the mandamus petition below.

         The Trial Court Lacked Jurisdiction

         The Thompsons' petition for writ of mandamus challenges the denial of their motion to dismiss and requests that we compel the trial court to dismiss the underlying proceedings for lack of jurisdiction. The Thompsons assert that the trial court abused its discretion in denying their motion to dismiss because Landry's motion to set aside the default judgment was filed after the trial court lost plenary power and did not confer jurisdiction on the trial court. We agree that the trial court lacked jurisdiction over the motion to set aside and, therefore, was required to dismiss that motion for lack of jurisdiction.

         A.Options to challenge the ...


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