What if the Motion for New Trial Is Not Sworn (or accompanied by proper affidavit)?

In this default judgment case, the non-answering Defendant filed an unverified motion for new trial, then supplemented it with an unverified purported "affidavit." At the hearing on the post-judgment motion, the trial judge gave the Defendant another chance to fix up the affidavit, and eventually granted the motion for new trial by written order. By that time, the court's plenary power over the judgment would normally have expired. In this case, however, it had not.

Plaintiff had obtained default judgment on only one cause of action and one form of relief, leaving others pending; So the default judgment was not a final judgment, and the running of the period leading to expiration of plenary power was never triggered. The court of appeals accordingly denies Plaintiff's request for an order telling the trial court judge to set aside her new-trial order.

In re Drake
(Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(per curiam) (mandamus challenging order granting new trial denied; default judgment was only a partial judgment, did not dispose of all claims in the lawsuit; there was thus no final judgment and plenary power had not expired)

ANALYSIS [ from the court's per curiam opinion]

Relator asserts that the trial court’s written order granting Godfrey’s motion for new trial is void because (1) it was signed 167 days after the April 2, 2009 default judgment; and (2) an oral ruling on the motion for new trial at the June 22, 2009 hearing was not effective. See Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (orig. proceeding) (per curiam) (“An order granting a new trial or modifying, correcting, or reforming a judgment must be written and signed.”); Tex. R. Civ. P. 329b(e) (if motion for new trial is overruled by operation of law, trial court’s plenary power expires 105 days after signing of judgment).

We first must determine whether the April 2, 2009 default judgment is a final judgment. If the default judgment is interlocutory, then the trial court “retains continuing control . . . and has the power to set [it] aside any time before a final judgment is entered.” Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam).

A default judgment is not presumed to be final. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig. proceeding); Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986) (orig. proceeding) (per curiam). When there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it (1) actually disposes of every pending claim and party, or (2) clearly and unequivocally states that it finally disposes of all claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). “[A] default judgment that fails to dispose of all claims can be final only if the ‘intent to finally dispose of the case’ is ‘unequivocally expressed in the words of the order itself.’” In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d at 830 (quoting Lehmann, 39 S.W.3d at 200); see also In re Lynd. Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding) (“A default judgment is deemed final if it expresses an unequivocal intent to finally dispose of the case.”).

Relator asserted claims in his original petition for negligence, negligence per se, gross negligence, breach of fiduciary duty, violations of the Deceptive Trade Practices Act, negligent misrepresentation, fraud, and breach of contract. The April 2, 2009 default judgment expressly disposes of only the breach of contract claim: “On the claim of Breach of Contract, the court finds in favor of Plaintiff, John Drake, and against Defendant, Sandra Roach Godfrey, in the amount of $100,000.00 (One Hundred Thousand and No/100 Dollars).” The April 2, 2009 default judgment does not refer to relator’s other causes of action or his requests for mental anguish damages, punitive damages, or treble damages; nor does it contain any clear and unequivocal language demonstrating an intent to render a final judgment. Therefore, the April 2, 2009 default judgment is interlocutory. See Burlington Coat Factory Warehouse of McAllen Inc., 167 S.W.3d at 830 (default judgment was interlocutory because it awarded damages on negligence claim, but did not dispose of request for exemplary damages based on gross negligence); Houston Health Clubs, Inc., 722 S.W.2d at 693 (default judgment was interlocutory because it did not dispose of punitive damage issue). Because the April 2, 2009 default judgment is interlocutory, the trial court retained jurisdiction to set aside the default judgment and grant a new trial. See Houston Health Clubs, 722 S.W.2d at 693–94; In re Bro Bro Props., Inc., 50 S.W.3d 528, 530 (Tex. App.—San Antonio 2000, orig. proceeding [mand. denied]).

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator’s petition for writ of mandamus.

MOTION OR WRIT DENIED:
Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-01058-CV In Re John Drake
Appeal from 133rd District Court of Harris County
Trial Court Judge: Jaclanel McFarland