MANDAMUS GRANTED TO SORT OUT POST-JUDGMENT “PROCEDURAL QUAGMIRE” IN CONDEMNATION PROCEEDING

In re State of Texas
Dallas Court of Appeals, No. 05-18-00685-CV (November 14, 2018)
Justices Lang, Myers (Opinion, linked here), and Whitehill

Ken Carroll

The State of Texas condemned part of EnergyTransfer Fuel’s pipeline easement, as well as other property, for a TxDOT road-widening project. The State and ETF reached a joint-use agreement that included an agreed dismissal of the condemnation claims against ETF. The remainder of the condemnation case proceeded to a jury trial that ended on May 5, 2017. On that same day, ETF filed a claim for statutory attorney’s fees incurred prior to its dismissal, under Texas Property Code §§ 21.019 & 21.0195. On May 12, the trial court issued its judgment on the jury verdict. That judgment did not specifically address ETF’s request for fees, but it ordered ETF dismissed and contained “magic” finality language: “This Judgment is a final judgment as to all claims of all parties to this action and is appealable. All other relief not expressly granted in this Judgment is denied.” And then the fun began. The “procedural quagmire” went like this:

May 5 — Jury verdict and ETF notice of request for fees
May 12 — “Final” judgment
May 17 —ETF files fee evidence
July 5 —ETF files motion to vacate and modify the May 12 judgment
July 6 — Trial court issues order denying ETF’s fee request
August 4 — Trial court holds hearing on ETF’s motion to vacate and modify
August 9 — Trial court issues order granting motion to vacate May 12 judgment and awards fees to ETF
August 23–February 1 —Trial court issues six more orders correcting or adjusting the fee award, vacating prior orders, etc.

The State filed a mandamus petition, arguing all orders after the May 12 judgment were void because they were issued after the trial court’s plenary power expired. ETF countered that (1) the May 12 judgment was not final until the trial court ruled explicitly on its fee request, and so the trial court had plenary power to issue its subsequent orders; and (2) the State’s request for mandamus relief was barred by laches.

The Dallas Court of Appeals took something of a middle road, but in the end granted the State the relief it sought. First, it summarily rejected ETF’s laches argument, observing that the State had tried at every turn to preserve its rights in the trial court. Next, the Court explained that a claim for statutory fees in a condemnation case does not accrue until after the condemnation proceeding is dismissed, and that a post-judgment claim for fees extends the trial court’s plenary power. Here, however, the May 12 judgment contained “finality language” that purported to dispose of all claims—presumptively including ETF’s May 5 fee claim, especially since it followed a jury verdict. So, the Court concluded that ETF’s May 5 request for statutory fees should be treated as a timely, albeit premature, motion to modify the May 12 judgment, which did extend the trial court’s plenary jurisdiction. ETF’s July 5 motion to modify, however, had no such effect, because it was directed to the May 12 judgment, from which plenary power had already been extended, and because it was filed outside the time limit of Rule 329b(a) & (b). When the trial court issued its July 6 order denying ETF’s fee request—effectively denying the premature, de facto motion to modify the May 12 judgment—that started the 30-day clock again. No motions were filed between then and August 7, so plenary power expired. All orders and modified judgments signed after August 7 therefore were void. The Court of Appeals therefore ordered them vacated and the May 12 judgment reinstated as final. No statutory fees for ETF. Moral: Carefully track the timing of final judgments and post-judgment motions to extend plenary power, even in a quagmire.