Summary
ordering judge who no longer has jurisdiction over case to vacate void order
Summary of this case from In re Collin Cnty.Opinion
No. 05-05-00497-CV
Opinion Issued June 14, 2005.
Original Proceeding from the 192nd and 296th Judicial District Courts, Dallas County and Collin County, Texas, Trial Court Cause Nos. 03-12845 and 296-02247-04.
Writ of Mandamus Granted.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
In this original proceeding, relators Darling Homes and Leo Garcia contend the 192nd and 296th Judicial District Courts abused their discretion in issuing orders transferring the underlying case between the courts. Among other issues, we must decide whether a motion to reconsider a ruling transferring venue extends the plenary jurisdiction of the transferring court. We conclude it does not. Accordingly, we conditionally grant the writ against the transferring court.
BACKGROUND
Santos Hernandez was killed in a construction accident in McKinney, Texas. His estate and family members Patricia Gonzalez, Rafael Santos Hernandez Gonzalez, Maria De Jesus Flores Guillen, and Santos Hernandez Ostillin (collectively Hernandez) sued Darling and Garcia in the 192nd Judicial District Court in Dallas County. Darling and Garcia moved to transfer the case to Collin County. The Dallas court granted the motion on August 3, 2004, ordering the case transferred to Collin County. Eight days later, Hernandez filed a motion to reconsider the transfer, and on September 27, the Dallas court signed an order vacating the transfer to Collin County.
Meanwhile, on September 1, the Collin County district clerk notified the parties that the case had been transferred to Collin County and assigned to the 296th Judicial District Court. Preparation for trial of the case took place in the 296th District Court until February 2005, when the parties filed motions to quash written discovery and depositions. In his motion to quash, Hernandez included a motion to transfer the case back to Dallas County. In the motion, Hernandez explained that the Dallas County court had rescinded its previous transfer order. Our record does not contain a ruling on Hernandez's motion to transfer the case to Dallas County. However, in a March 16, 2005 order denying the motions to quash written discovery and depositions, the 296th District Court stated "that this Court should concede jurisdiction over this matter to the 192nd Judicial District Court of Dallas County, Texas." After this order issued, Darling and Garcia petitioned this Court for mandamus relief directing (1) the Dallas County court to vacate its September 27th order rescinding the transfer to Collin County and to proceed no further with the case and (2) the Collin County court to vacate its order of March 16 "conceding" jurisdiction to the Dallas County court. To date, Hernandez continues to prosecute the case before the Dallas County district court.
In this proceeding, relators contend (1) the Dallas County district court abused its discretion in vacating the order transferring the case to Collin County because it did so after its plenary jurisdiction expired, (2) rule 87.5 of the Texas Rules of Civil Procedure prohibits the motion to reconsider, and (3) the Collin County district court abused its discretion in "conceding" jurisdiction over the case to Dallas County. We begin our discussion with the plenary jurisdiction argument.
To receive relief by mandamus a relator must show the trial court clearly abused its discretion and that he does not have an adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). The issuance of an order after expiration of the trial court's jurisdiction renders the order void. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (per curiam) (orig. proceeding). The issuance of a void order constitutes a clear abuse of discretion. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam) (orig. proceeding). If a trial court's order is void, any further action by the court is a nullity. Dickason, 987 S.W.2d at 571. A relator does not have to wait and appeal the null actions after issuance of a final judgment; he is entitled to relief by mandamus. Dickason, 987 S.W.2d at 570; Southwestern Bell, 35 S.W.3d at 605.
After a trial court grants a motion to transfer venue, it retains plenary jurisdiction over the case for thirty days. Id; HCA Health Svcs. of Tex., Inc. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992) (per curaim) (orig. proceeding). Even if the venue transfer is interlocutory for the parties, the order is final as far as the transferring court is concerned. Southwestern Bell, 35 S.W.3d at 605; Salinas, 838 S.W.2d at 248. Thus, a court has thirty days after it signs a transfer order to vacate or modify that order. Souhwestern Bell, 35 S.W.3d at 605.
Here, Hernandez argues that when he filed a motion to reconsider eight days after the transfer order was signed, the Dallas County court's plenary jurisdiction was extended 105 days pursuant to Texas Rule of Civil Procedure 329b(e). He argues his motion acted as a motion for new trial and argues the trial court's order vacating transfer is not void. See Tex. R. Civ. P. 329b(e). After considering the applicable law and the nature of venue transfers, we decline to apply the provisions of rule 329b(e) to extend the trial court's jurisdiction after the signing of an order transferring venue to another county.
Motions to transfer venue and determinations of those motions are governed by rules of civil procedure 86 and 87. See Tex. R. Civ. P. 87. Under rule 86, an objection to improper venue is waived if not made by written motion filed before or concurrently with any other plea, pleading, or motion except a special appearance. Tex. R. Civ. P. 86.1. Once a motion is filed, it is to be determined "promptly." Tex. R. Civ. P. 87.1. Except for inability to obtain a fair trial, only one motion to transfer is allowed in any case. Tex. R. Civ. P. 87.5. In fact, even if a party is added after the first motion is filed, he cannot file a subsequent motion to transfer except on the ground of inability to obtain a fair trial. Id. Finally, interlocutory appeals are prohibited. Tex. R. Civ. P. 87(6).
These restrictions reflect the supreme court's desire for rapid disposition of a motion to transfer. Were we to accept Hernandez's argument, litigation could be stalled for 105 days while the transferring court decides whether it will rescind its order. During that time, the receiving court is not obligated to take any action. Such a delay is not an efficient use of judicial resources. Accordingly, we conclude a trial court's plenary jurisdiction is not extended by a motion to reconsider an order transferring venue.
In reaching this conclusion, we are unpersuaded by Hernandez's reliance on U.S. Resources, Inc. v. Placke, 682 S.W.2d 403 (Tex.App.-Austin 1984, orig. proceeding). In Placke, a district judge in Lee County inadvertently signed an order transferring venue in the case to Hidalgo County before holding a hearing on the motion. The plaintiff filed a motion to reconsider, and within thirty days of the order, the trial court rescinded it. Placke, 682 S.W.2d at 404. The issue in Placke, however, revolved around a special Lee County statute that required motions for new trial to be filed within ten days; the defendant argued the statute also required a ruling in ten days. The Austin court concluded otherwise, relying on rule of civil procedure 329b, which at that time gave the trial court thirty days after judgment to act upon timely filed motions for new trial or similar motions. Id. at 405. To the extent that Placke can be so broadly interpreted as to extend a trial court's plenary jurisdiction pursuant to rule 329b, we respectfully disagree. As for Hernandez's assertion that other courts have accepted his argument that a motion to reconsider is a rule 329b motion which extends the trial court's jurisdiction pursuant to Placke, we also disagree. For this argument, Hernandez relies on Salinas and Orion Enters., Inc. v. Pope, 927 S.W.2d 654, 659 (Tex.App.-San Antonio 1996, orig. proceeding). However, these courts have relied on Placke only in connection with statements that a transferring court's jurisdiction expires thirty days after the date it signs the transfer order. HCA, 838 S.W.2d at 248, Orion, 927 S.W.2d at 659. None of the cases relying on Placke states, explicitly or impliedly, that the filing of a motion to reconsider an order transferring venue in a non-family law case extends the trial court's jurisdiction beyond thirty days.
We conclude the trial court had only thirty days after it signed the transfer order on August 3, 2004 to vacate or modify that order. Because the Dallas court's order vacating the transfer was signed fifty-five days later, that order is void. The signing of a void order is an abuse of discretion. Southwestern Bell, 35 S.W.3d 605. We sustain Darling and Garcia's first issue. Our disposition of this issue makes it unnecessary to address the second issue.
Having concluded that the Dallas County court did not have jurisdiction to rescind its transfer order, we next turn to the Collin County court. In their third issue, relators argue that the 296th District Court in Collin County has impermissibly ceded jurisdiction to Dallas County. For this position, relators rely on the following highlighted language contained in the March 16 order denying motions to quash written discovery and depositions:
This Court, after considering the merits of each of these motions, the pleadings on file, and the arguments of counsel, finds that both motions should be denied and that this Court should concede jurisdiction over this matter to the 192nd District Court of Dallas County, Texas.
The order mentions transferring jurisdiction to the 192nd only in the introductory paragraph. The introductory paragraph states jurisdiction "should" be ceded to the 192nd. Should is "normally synonymous with `may,' and although often interchangeably with the word "would," it does not ordinarily express certainty as `will' sometimes does." Black's Law Disctionary 1379 (6th Ed. 1990). There is no mandatory language ordering the case transferred to the 192nd. Under these circumstances, we conclude the language of the order expresses only a sentiment that jurisdiction resides in Dallas County; it does not transfer the case to Dallas County. There is nothing in the record before this Court to indicate that such an order has been issued. Because there is no actionable order from the 296th District Court before this Court, we cannot conclude relators have shown an abuse of discretion. Consequently, we deny their request for mandamus relief against the 296th District Court. We resolve the third issue against relators.
Having sustained Darling and Garcia's first issue, we conditionally grant the writ of mandamus against the 192nd Judicial District Court. We ORDER the 192nd Judicial District Court to vacate its order signed September 27, 2004. The court is directed to file certified copies of its orders in compliance with this opinion and order within thirty days of the date of this opinion and order. Should the court fail to do so, the writ will issue.