author: PRICE, J., KELLER, P.J.,

text:
    Lonnie Ray ANDREWS, Appellant, v. The STATE OF TEXAS.
    Nos. PD-0993-03 to PD-0996-03.
    Court of Criminal Appeals of Texas.
    March 23, 2005.

      Richard W. Wilkinson, Jr., Houston, for Appellant.
    Bridget Holloway, Assist. DA, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion of the Court,

in which MEYERS, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ.,

joined.

In this case, during closing arguments, the prosecutor made a misstatement of the law that was detrimental to the appellant. The appellant’s counsel failed to object to this misstatement of law. In a published case, the Court of Appeals overruled the appellant’s point of error because there was no evidence of trial counsel’s motive for failing to object to the prosecutor’s misstatement. Because we conclude that, under the unusual circumstances of this case, there could be no legitimate trial strategy in failing to object to the prosecutor’s misstatement, we reverse the judgment of the Court of Appeals.

I. Facts

The appellant was charged with three counts of sexual assault and one count of indecency with a child. On the day that voir dire began, the State filed a written motion to cumulate the sentences under Penal Code Section 3.03. The State hand delivered a copy of the motion to defense counsel. At the close of the guilt phase of the trial, the jury found the appellant guilty of all four counts. Defense counsel did not request, and the charge during the punishment phase of the trial did not contain, an instruction explaining that the trial court may, in its discretion, stack the appellant’s sentences under Penal Code Section 3.03.

Six days after filing the motion to cumu-late sentences the same prosecutor who had filed the motion argued at the end of the punishment phase that the sentences could not be cumulated:

So you have to come up with an amount. You’ve got four charges. They don’t add up, by the way. You give him 20 years in each case, it’s still just 20 years. It’s still not 80. You can give different amounts if you want. You can give 20, 10, 10, five, it’s still just 20. And you can forget about the fine. We’re talking about keeping him off the streets, keeping him away from other people, for other victims, for the future and for what he did here.

This argument left the jury with the incorrect impression that the appellant’s sentences could not be stacked and that the appellant would serve no more than twenty years in prison for all four counts. Defense counsel failed to object to this incorrect argument. The jury assessed punishment at 20 years’ imprisonment and a fine of $10,000 for each of the three sexual assault counts and 18 years’ imprisonment and a $5000 fine for the indecency count. In the presence of defense counsel, the trial court granted the State’s motion to cumulate the sentences and imposed a combined prison sentence of 78 years.

On direct appeal, the appellant complained that his trial counsel was ineffective for failing to object to the prosecutor’s misstatement of the law. The Court of Appeals affirmed the appellant’s conviction, holding that it would not find counsel’s performance deficient without a record that indicated counsel’s reasons for failing to object.

The appellant filed a petition for discretionary review, which we granted, complaining that the Court of Appeals erred by rejecting his claim of ineffective assistance of counsel.

II. The Law

In Strickland v. Washington, the Supreme Court articulated a two-prong test to be used when analyzing a claim of ineffective assistance of counsel. To have his conviction reversed on the grounds of ineffective assistance of counsel, an appellant must show that (1) counsel’s representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the appellant. Unless the appellant makes both showings, it cannot be said that his conviction is rendered unreliable by a breakdown in the adversarial process. In Hernandez v. State, we adopted the Strickland two-prong test for criminal cases in Texas.

Our review of counsel’s performance must be highly deferential. There is a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance, and the defendant must overcome the presumption. We determine the reasonableness of counsel’s challenged conduct in context, and view it as of the time of counsel’s conduct.

We have said that we commonly assume a strategic motive if any can be imagined and find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. The policy behind this course is that “[ijntensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.” This standard bal-anees the protection of these important policy interests with the protection of each defendant’s fundamental Sixth Amendment rights.

As a result, we have said that the record on direct appeal is in almost all cases inadequate to show that counsel’s conduct fell below an objectively reasonable standard of performance and that the better course is to pursue the claim in habeas proceedings. But, when no reasonable trial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for acting as she did.

To satisfy the second prong of the Strickland test, we do not require that the appellant show that there would have been a different result if counsel’s performance had not been deficient. The defendant must show only that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

III. Deficient Performance

The Supreme Court in Strickland said that our review of counsel’s performance must be highly deferential. But, in the statement immediately preceding that one, the Supreme Court said that, “In making [its] determination, the [reviewing] court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.” Counsel failed to do so in this case when he failed to object to the prosecutor’s misstatement of the law, even though counsel had received a copy of the State’s motion to cumulate sentences on the day that voir dire began. Defense counsel has a duty to correct misstatements of law that are detrimental to his client. This duty derives from counsel’s function “to make the adversarial testing process work in the particular case.” There can be no reasonable trial strategy in failing to correct a misstatement of law that is detrimental to the client.

The State argues that, because the record is silent about counsel’s reasons for failing to object, we should not conclude that counsel’s performance was deficient. It says that counsel should be given an opportunity to explain his reasons and claims that this case is no different than Freeman v. State, in which we held that, absent an explanation of trial counsel’s reasons for failing to file a motion to re-cuse the trial judge, we could not presume that counsel’s performance was deficient.

In Freeman, we repeated what we have said in many cases: Generally, post-conviction writ proceedings are a better forum for pursuing relief on an ineffective assistance of counsel claim. The United States Supreme Court said the same thing in Massaro v. United States.

Neither this Court, nor the Supreme Court, has said that a claim of ineffective assistance will never be successful on appeal. Although the Supreme Court noted that there are few cases that may be resolved by way of appeal, it has stopped short of saying that no such claims may ever be resolved on direct appeal.

Our conclusion regarding the first prong of the Strickland test is not a departure from our holding that generally a claim of ineffective assistance of counsel may not be addressed on direct appeal because the record on appeal usually is not sufficient to conclude that counsel’s performance was deficient. We ordinarily need to hear from counsel whether there was a legitimate trial strategy for a certain act or omission. Frequently, we can conceive potential reasonable trial strategies that counsel could have been pursuing. When that is the case, we simply cannot conclude that counsel has performed deficiently.

That is not the situation that we are dealing with in this case. Under the extremely unusual circumstances of this ease, the record contains all the information that we need to make a decision. Trial counsel failed to object to the prosecutor’s misstatement of the law regarding whether the appellant’s sentences could be stacked, even though he knew that the State had filed a motion to cumulate the sentences. There can be no reasonable trial strategy in failing to correct this false impression that was harmful to the appellant.

IV. Prejudice

The record also supports the conclusion that the second prong of the Strickland test has been satisfied. The State’s argument left the jury with the false impression that the maximum sentence that the appellant would serve was twenty years when the maximum sentence was really eighty years. In fact, the appellant was sentenced to a total of 78 years. The jury had incorrect information from which to assess the appropriate sentence for the appellant. The prosecutor told the jury that, after assessing a twenty-year sentence on the first count, it would not matter what sentence the jury assessed for the remaining three counts.

Had defense counsel objected on the basis that the prosecutor’s argument was a misstatement of the law, the trial court could have corrected the misstatement and told the jury not to consider whether the court could or would cumulate the sentences. Because the jury received incorrect information about the appellant’s punishment, the record supports the conclusion that there is a reasonable probability that the result would have been different.

V. Conclusion

This is a rare case. This is a case in which the appellant has raised a claim of ineffective assistance of counsel on direct appeal and the record is sufficient for us to make a decision on the merits. Because we conclude that the record is sufficient to conclude that counsel’s performance was deficient and that the appellant was prejudiced by counsel’s failure to object to the prosecutor’s misstatement of law, we reverse the judgment of the Court of Appeals and remand for a new punishment hearing.

HERVEY, J., concurs in the judgment.

WOMACK, J., dissents.

KELLER, P.J., filed a dissenting opinion.

KELLER, P.J.,

dissenting.

The Court finds counsel ineffective without permitting him to defend himself, and the reason for doing so seems to be the Court’s inability to conceive of a trial strategy for failing to object to the prosecutor’s argument. I respectfully dissent.

Time and again, we have reversed courts of appeals decisions that find ineffective assistance of counsel. Especially in cases like this one, “where the alleged derelictions primarily are errors of omission de hors the record rather than commission revealed in the trial record” we have said that “collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record.” Our inability to think of a strategy does not mean that such a strategy could not have existed. There is no good reason to jump the gun and grant relief in this case, when the record-and counsel’s reasons for his actions-can be fully developed on habeas.

There is another reason not to grant relief at this point. The Court makes an effort to explain why this case is different from the many ineffective-assistance cases in which we have reproved courts of appeals for granting relief. But the only difference seems to be that in those cases it was the court of appeals that could think of no strategy for counsel’s actions, and in this case it is our Court that can think of no strategy. I do not know what lesson the courts of appeals are to gather from our inconsistent approaches to these claims.

Moreover, the Court brands defense counsel “ineffective” without giving him a chance to explain the reasons for his actions. I would not denounce counsel without giving him a chance to respond to these allegations. Even in post-conviction writ applications, this Court’s consistent practice is to give defense counsel a chance to respond to charges of ineffective assistance.

Finally, under a bill now pending in the legislature, any attorney found to have rendered ineffective assistance of counsel will be forever ineligible for appointment as either lead or second-chair counsel in a death penalty case — -at trial, on appeal, or in post-conviction habeas. The Court’s decision in this case could have far-reaching consequences for the luckless trial attorney. If there were no alternative to granting relief on direct appeal, perhaps I would find appellant’s argument more persuasive. But habeas corpus, where a detailed examination of these claims “may be developed and spread upon a record,” not only avoids the pitfalls I have anticipated, but offers a better method of arriving at the truth.

It may well be that appellant will prove his allegations and obtain relief on habeas corpus. But granting relief at this juncture is premature.

      . Tex. Pen.Code § 22.011.

      . Tex. Pen.Code § 21.11.

      . Penal Code Section 3.03 provides, in relevant part, that, if the accused is found guilty of more than one offense arising out of the same criminal episode,
      the sentences may run concurrently or consecutively if each sentence is for a conviction of an offense under Section 21.11, 22.011, 22.021, 25.02, or 43.25 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section.

      . The appellant raised two other claims of ineffective assistance of counsel that were not mentioned in his petition.

      . Andrews v. State, 106 S.W.3d 402 (Tex.App.Houston [1st Dist.] 2003).

      . On November 19, 2003, the appellant’s first petition was struck for exceeding the page limit found in Texas Rule of Appellate Procedure 68.5. According to the Rule 68.5, we allowed the appellant to redraft his petition. This opinion refers to the redrafted petition.

      . The appellant raised other grounds, of which we did not grant review. The appellant mentions several of his ineffective assistance of counsel claims in his petitions. He includes argument regarding only one: whether the Court of Appeals erred in concluding that counsel was not ineffective for failing to object to the prosecutor's misstatement of the law. The appellant did not, but should have, raised all of his ineffective assistance of counsel claims in his petition for discretionary review.

      . 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Id., at 687, 104 S.Ct. 2052.

      . Ibid.

      . 726 S.W.2d 53 (Tex.Crim.App.1986).

      . Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

      . Ibid.

      . Ibid.

      . Bone v. State, 77 S.W.3d 828, 833 n. 13 (Tex.Crim.App.2002) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)).

      . Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

      . Bone, 77 S.W.3d at 833; Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).

      . Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

      . Id., at 694, 104 S.Ct. 2052 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.”).

      . Ibid.

      . Id., at 690, 104 S.Ct. 2052.

      . Ibid.

      . Ibid.

      . Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App.2003).

      . Massaro v. United States, 538 U.S. 500, 505-06, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

      . Id., at 507, 123 S.Ct. 1690.

      . See, e.g., Freeman v. State, 125 S.W.3d 505 (Tex.Crim.App.2003); Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App.2003); Bone v. State, 77 S.W.3d 828 (Tex.Crim.App.2002).

      . Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App.1998).

      . Proposed H.B. 268 (proposed Article 11.071, § 1(d)(2)(D)), House Comm. Report, March 1, 2005.


source: Caselaw Access Project

author: Justice RODRIGUEZ.

license: Public Domain

text:
    Eric ABRAHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 13-00-213-CR.
    Court of Appeals of Texas, Corpus Christi—Edinburg.
    Nov. 9, 2000.
    William Edward May Jr., Corpus Christi, for appellant.
    Carlos Valdez, Nueces County Dist. Atty., Corpus Christi, for state.
    Before Chief Justice SEERDEN and Justices DORSEY and RODRIGUEZ.
   OPINION

Opinion by

Justice RODRIGUEZ.

Appellant, Eric L. Abraham, entered an agreed plea of guilty to the offense of possession of cocaine. Pursuant to the plea bargain, the court placed Abraham on deferred adjudication for a period of three years. This did not exceed the punishment recommended by the prosecutor and agreed to by the defendant. The State later moved to revoke, and the trial court ordered the term extended for an additional two years. Subsequently, the State filed a second motion to revoke and to adjudicate guilt. At the hearing, Abraham pleaded true to the allegations contained in the State’s motion to revoke. On the basis of this plea, the trial court adjudicated Abraham guilty of possession of cocaine and sentenced him to one year state jail time. He filed a general notice of appeal. Abraham raises a single issue on appeal, complaining he was denied due process at his revocation hearing because he did not receive credit for time served in jail or the benefit of a pre-sentence investigation report.

Before reaching its merits, we must first determine whether this Court has jurisdiction to consider the appeal. The State contends it should be dismissed for want of jurisdiction because it is an attempt to appeal from a plea-bargained conviction, and Abraham has not complied with any exception found in Texas Rule of Appellate Procedure 25.2(b)(3). We agree and dismiss for want of jurisdiction.

Rule 25.2(b)(3) provides that following an agreed plea of guilty, and where the punishment does not exceed that recommended by the prosecutor and agreed to by the defendant, a notice of appeal must specify that: (1) the appeal is for a jurisdictional defect; (2) the substance of the appeal was raised by written motion and ruled on before trial; or (3) state that the trial court granted permission to appeal. See Tex.R.App. P. 25.2(b)(3). An appellant who has pleaded guilty in exchange for deferred adjudication must comply with rule 25.2(b)(3) when he seeks to appeal a subsequent adjudication and sentencing. See Manuel v. State, 994 S.W.2d 658, 660 n. 2 (Tex.Crim.App.1999) (applying former appellate rule 40(b)(1)); Watson v. State 924 S.W.2d 711, 714-15 (Tex.Crim.App. 1996) (same); Vidaurri v. State, 981 S.W.2d 478, 479-80 (Tex.App.-Amarillo 1998, pet. granted) (on issue of purported failure of trial court to afford defendant punishment hearing prior to sentencing, court held rule 25.2(b)(3) applied and general notice of appeal not sufficient to confer jurisdiction); Okigbo v. State, 960 S.W.2d 923, 925 (Tex.App.-Houston [1st Dist.] 1998, pet. refd) (applying rule 25.2(b)(3)). But see Brunson v. State, 995

S.W.2d 709, 712-13 (Tex.App.-San Antonio 1999, no pet.) (court addressed sufficiency of separate punishment hearing even though appellant had not complied with rule 25.2(b)(3)). We conclude rule 25.2(b)(3) applies to appellant.

Abraham asserts no jurisdictional defects. He does not contend that his appeal is from an issue raised by written motion and ruled on before trial. Further, Abraham’s notice does not set out that the court granted him permission to appeal. He has not raised one of the three exceptions identified in rule 25.2(b)(3). Accordingly, we conclude this Court is without jurisdiction to consider this appeal, and dismiss it for want of jurisdiction.

      . See Tex Health & Safety Code Ann. § 483.115(b) (Vernon Supp.2000).


author: Justice YÁÑEZ.

text:
    Harold CALDWELL, Appellant, v. Robert F. BARNES, Appellee.
    No. 13-00-458-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 20, 2003.
    Rehearing Overruled June 5, 2003.

      Gus E. Pappas, Dabney & Pappas, Houston, for appellant.
    Kelly K. McKinnis, Thomas 0. Matlock, Jr., McAllen, for appellee.
    Before Justices YÁÑEZ, RODRIGUEZ, and DORSEY.

      . Retired Justice J. Bonner Dorsey, who concluded his term of office on December 31, 2002, continues to sit on this Court by assignment of the Chief Justice of the Texas Supreme Court pursuant to Tex. Gov’t Code Ann. § 74.003 (Vernon 1998).

   MEMORANDUM OPINION

Opinion by

Justice YÁÑEZ.

Appellant, Harold Caldwell, appeals from the trial court’s denial of a bill of review that requested the trial court to set aside a default judgment in favor of appel-lee, Robert F. Barnes. Specifically, Caldwell contends the trial court erred in: (1) not granting him a trial on his bill of review; (2) requiring a prima facie hearing to determine his entitlement to a bill of review trial and in failing to apply the proper standard of review at the hearing; and (3) failing to grant his bill of review as a matter of law and proceeding to trial on the underlying case. We affirm.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here. See Tex.R.App. P. 47.4. We briefly detail, however, the recent procedural history of the case insofar as necessary to explain our disposition.

Caldwell filed a bill of review to set aside a default judgment granted in favor of Barnes. In our original opinion, issued on October 10, 1996, we affirmed the judgment. See Caldwell v. Barnes, 941 S.W.2d 182, 190 (Tex.App.-Corpus Christi 1996), rev’d, 975 S.W.2d 535 (Tex.1998). The supreme court reversed, noting that a genuine issue of fact remained regarding whether default judgment was rendered against Caldwell without service. Caldwell, 975 S.W.2d at 537. The supreme court reversed the judgment and remanded to the trial court for further proceéd-ings. Id. at 539.

On June 7 and 8, 2000, the trial court held a hearing on the issue of notice. On June 15, 2000, the trial court denied the bill of review. Thereafter, pursuant to an order of this Court issued on February 14, 2002, we abated the appeal and ordered the trial court to issue findings of fact as to whether Caldwell was served with process in the underlying suit.

In a letter dated April 4, 2002, the trial court made the following findings of fact:

1) The credibility and interest of witnesses presented at the hearing was in issue;
2) Harold Caldwell has a custom and practice of being “served” individually and on behalf of corporations with petitions and not “answering” such lawsuits allowing default judgments to be entered;
3) Dewayne Perdew gave at least two completely contradictory statements under oath regarding the service in question;
4) Lucille Laekley’s [sic ] credibility was also called into question; and
5) Harold Caldwell was served in the underlying case which resulted in a default judgment.

The trial court’s findings of fact were forwarded to this Court by a supplemental clerk’s record filed May 17, 2002.

In a non-jury case, the trial court’s findings of fact have the same force and dignity as does a jury verdict on special issues. Gone v. Gone, 993 S.W.2d 845, 847 (Tex.App.Houston [14th Dist.] 1999, pet. denied) (holding bill of review was properly denied by trial court because appellant’s own negligence in failing to file answer, unmixed with any other, resulted in default judgment against him). Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not substitute our judgment for that of the trial court’s simply because we may disagree with the court’s findings. Id. at 848. We may set aside the finding only if the evidence is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

A bill of review is an independent equitable proceeding by a party to a former action who seeks to set the judgment aside when it is no longer appealable or subject to a motion for new trial. Caldwell, 975 S.W.2d at 537. To challenge a judgment by bill of review successfully, the petitioner must ordinarily allege and prove three elements: (1) a meritorious claim or defense, (2) that he was prevented from asserting by the fraud, accident, or wrongful act of his opponent or a court official in the exercise of official duties, (3) unmixed with any fault or negligence of his own. Id.

Before conducting a full trial on the bill of review, a court may conduct a hearing at which the complainant is to present prima facie proof to support his contended defense. Gone, 993 S.W.2d at 847 (citing Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex.1979)). A petitioner for a bill of review is required to show that the need for a bill of review is through no negligence of his own. Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 58 (Tex.App.-Houston [1st Dist.] 2000, pet. denied); Ortmann v. Ortmann, 999 S.W.2d 85, 90 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (holding petitioner seeking a bill of review must prove that reason he failed to assert a defense in underlying action was unmixed with any fault or negligence on his part). This is an essential element to make a prima facie bill of review case. See Caldwell, 975 S.W.2d at 537; Baker, 582 S.W.2d at 406-07.

Here, the trial court held a hearing and admitted evidence on the issue of notice. The trial court heard conflicting evidence regarding whether Caldwell was served with process in the underlying suit. The trial court resolved the conflicts and issued findings of fact that Caldwell was served in the underlying suit.

We find the trial court could have correctly concluded that Caldwell’s own negligence in failing to file an answer, unmixed with any other, resulted in the default judgment against him. This is an essential element to making a prima facie case for a bill of review. Gone, 993 S.W.2d at 848. Caldwell’s failure to make a prima facie case showing there was no negligence on his part in not filing an answer defeats his right to a bill of review. See id.

We overrule Caldwell’s points of error and AFFIRM the judgment of the trial court.


author: Justice DON WITTIG (Retired).

text:
    FIRST NATIONAL BANK OF EDINBURG, Appellant, v. CAMERON COUNTY, Texas, Appellee.
    No. 13-02-485-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Jan. 15, 2004.
    Rehearing Overruled April 15, 2004.

      Chris A. Brisack, Neil E. Norquest, Norquest & Brisack, LLP, McAllen, Norton A. Colvin, Jr., Rodriguez, Colvin & Chaney, LLP, Brownsville, for Appellant.
    Charles Willette, Jr., Willette & Guerra, L.L.P., Roman Dino Esparza, Brownsville, for Appellee.
    Before Justices RODRIGUEZ, CASTILLO, and DON WITTIG.

      . Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to § 74.003 of the government code. See Tex. Gov't Code Ann. § 74.003 (Vernon Supp.2004).

   OPINION

Opinion by

Justice DON WITTIG (Retired).

This is a summary judgment case emanating from First National Bank of Edin-burg’s former depositor relationship with Cameron County. The trial court granted the County’s traditional motion for summary judgment on its contract claim. The Bank appeals the summary judgment against it and complains the trial court should have granted the Bank’s own motion for summary judgment on the contract claim, as well as on the County’s quantum meruit and negligent misrepresentation claims. We affirm in part, reverse and render in part, and reverse and remand in part.

I

On June 15, 1999, after a bidding process, the Bank entered into a two-year fixed term deposit contract with the County. The Bank agreed to pay the County 4.25% interest, or, at the County’s option, a variable rate, for a period of two years. The County chose the 4.25% interest. The contract term provision specified the contract would expire on April 30, 2001. The provision also allowed the contract to be extended sixty days or until the County executed a depository agreement with another institution, whichever occurred first.

Once the banking relationship was established, various County accounts were opened, and County employees signed signature cards. The signature cards, which are the basis of the County’s contract action, do not provide for the payment of interest. April 30, 2001, the contract’s expiration date, passed. On June 25, the Bank’s chief financial officer sent a written notice to the County treasurer advising that the sixty-day extension would expire on June 29, 2001. On June 29, 2001, the County still had over fifty-seven million dollars in the Bank. Another letter was sent June 29th stating that the Bank would not charge the County for continued banking services, but the Bank would pay no interest after July 1, 2001. By the end of July, the County reduced its balances to a little over three million dollars.

The County filed this action claiming the signature cards constituted independent deposit contracts and that the Bank failed to give reasonable notice that it would no longer pay interest on the various accounts. The County alternatively pled quantum meruit and negligent misrepresentation. In its motion for summary judgment on the contract claim, the County stated it would abandon its alternative claims if summary judgment were granted on the contract claim. In its brief, the County reserves these alternate claims if it does not prevail on the contract issue.

The Bank countered with its own motion for summary judgment on all three of the County’s theories. This motion was denied. The trial court granted the County’s motion for summary judgment, which was based solely on its contract claim. Based on supplemental summary judgment evidence, the judgment awarded the County slightly over seventy thousand dollars. The calculation was based upon applying and extending the 4.25% interest rate after July 1, 2001 to the County’s balances. The trial court also awarded attorney’s fees to the County, which the County admits is not supported by the record.

II

We review the trial court’s granting of a motion for summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Tex. Commerce Bank-Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex.App.-Corpus Christi 2000, pet. denied). When reviewing a summary judgment under the traditional standard, we view the evidence in the light most favorable to the nonmovant, indulging in every reasonable inference and resolving any doubt in favor of the nonmovant. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Where both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex.1993). When both sides move for summary judgment and the trial court grants one motion but denies the other, we review both sides’ summary judgment evidence, determine all questions presented, and render the judgment that the trial court should have rendered. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex.2001).

III

In its first two issues, the Bank argues that the interest-bearing depository contract expired on June 29, 2001. The signature cards themselves do not provide for the payment of interest.

The County maintains that the Bank breached its contractual duty under the signature card by failing to provide the County with reasonable notice of the Bank’s intent to change the interest rate paid from 4.25% to 0.00%. The County argues that the finance code requires reasonable notice of such a change. See Tex. Fin.Code Ann. § 34.302(b) (Vernon 1998). Further, that code provides that a deposit agreement between a bank and an account holder is considered a contract in writing for all purposes and may be evidenced by one or more agreements, signature cards, et cetera. Id. § 34.301(a) (Vernon Supp. 2003). The County concludes that while the 1999 deposit contract recites an interest rate, it does not address the procedure for reasonably notifying the County of an interest rate change; ergo the signature card and the finance code provided these ingredients. See id. § 34.302(b).

The Bank counters that the County conflates the duties under the signature card and the deposit contract. We agree. The County moved for summary judgment only on claims arising out of the signature card and the finance code. It did not move for summary judgment on the primary depository obligations. We will not consider new or other claims made by the County that were not submitted to the trial court. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993) (summary judgment cannot be sustained on ground not specifically set forth in motion); see also Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (defense to only one of four causes of action addressed in summary judgment motion).

While the County argues that it “expected” the Bank to continue paying interest after the term of the deposit agreement expired, it points to no agreement that would give rise to such a contractual obligation. As aptly noted by the County, the elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 771 (Tex.App.-Corpus Christi 2001, no pet.). However, in Adams we also observed the requisites for a valid contract are: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. Id.

Here, the Bank offered to pay a premium rate for all of the County’s funds for a specified term of two years plus sixty days. The other elements of a contract existed, and, thus, a valid depository contract existed. Assuming that the signature cards upon which the County based its contract assertions were valid contracts, they did not provide for interest. Thus, there was no meeting of the minds regarding payment of interest under the signature cards. Therefore, as a matter of law, the Bank was not obligated to pay interest, based upon the signature cards. See id.; see also Worden v. Thornburg, 564 S.W.2d 480, 483-84 (Tex.Civ.App.-Corpus Christi 1978, writ refd n.r.e.) (plaintiffs failed to prove contractual obligation under signature card).

The County’s argument under the finance code concerning notice also fails for several reasons. First, there was no amendment to either the depository contract or the signature cards. See Tex. Fin.Code Ann. § 34.302 (Vernon 1998). Second, there were no provisions in the signature cards providing for interest that were amended or changed. Nor has the County shown how the signature cards somehow modified the only contract that provided for interest. See Worden, 564 S.W.2d at 483-84. In any event, the 1999 depository contract did not provide for interest after its agreed expiration. We sustain the Bank’s two related issues that the County’s motion for summary judgment was granted in error and that the Bank’s motion for summary judgment on the contract claim was proper and should have been granted.

The Bank also argues that, if the trial court based its judgment on the County’s claims for quantum meruit or negligent misrepresentation, it erred. The trial court did not base its decision on these claims. The County’s motion clearly delineated that it was based upon the contract claim and that it waived these two alternate claims if summary judgment were granted on the contract claim. Therefore, there is no need to address these issues, in that context. However, the Bank also contends the trial court should have granted its own motion on these two claims. We examine these remaining claims in turn.

The Bank argued before the trial court and us that there are four elements of a claim for quantum meruit. These elements are:

“1) valuable services were rendered or materials furnished; 2) for the person sought to be charged; 3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; 4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged.”

Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 310 (Tex.1985) (quoting City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex.Civ.App.-Corpus Christi 1977, writ ref d n.r.e.)). We agree.

On appeal, the Bank expands its argument to challenge, inter alia, that the second element requires the efforts must have been undertaken “for the person sought to be charged.” The Bank also cites City of Ingleside, 554 S.W.2d at 943 in support of this argument. However, the only argument made to the trial court was that the facts do not even meet one element of the quantum meruit claim. In its summary judgment motion before the trial court, the Bank contended:

The Depository Contract between Plaintiff and Defendant expired (including the grace period) on June 29, 2001, and Plaintiff failed to remove its funds from Defendant Bank until July 16th, 2002. There is nothing the Defendant could have done to remove the County’s accounts until the County transferred the fund to another bank. Plaintiff has failed to prove any element of this theory, which should be dismissed.

This portion of the Bank’s summary judgment motion is no more than a general demurrer. General demurrers are long antiquated in Texas practice. Tex.R. Civ. P. 90. Further, the Bank’s motion fails to give due notice to the County or the trial court as to the legal or factual basis of its motion. See Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex. 1977) (pleadings need give fair and adequate notice to their adversary); see also Tex.R. Civ. P. 45. Nor does this part of the motion direct its attention to any specific proof. Thus, the Bank failed to establish its entitlement to a summary judgment on the quantum meruit claim as a matter of law. See Guynes, 861 S.W.2d at 862; see also Tex.R. Civ. P. 166a(c). We overrule this issue.

Finally, the Bank argues that the trial court erred by not granting its motion on the County’s negligent representation claim. In this portion of the motion, the Bank does assert that there is no proof of any representation made that the Bank would extend or change the depository contract. Once again, on appeal the Bank changes its course.

On appeal, the Bank argues that the County could not establish that it had justifiably relied upon a representation by a Bank officer. This was not raised before the trial court. It is an elementary requirement of a motion for summary judgment that it “shall state the specific grounds therefor.” Tex.R. Civ. P. 166a(c). Regarding the Bank’s assertion that no proof of any representation occurred, the County responded with an affidavit from C. Douglas Wright. Wright’s affidavit stated that a named Bank official represented to Wright that he was unaware of any interest rate change and that the banker clearly implied the County would continue to receive interest on its funds after June 29, 2001. We need not even address whether this affidavit raises a fact issue, because the burden of proof was on the Bank as movant. See Wolf, 44 S.W.3d at 566. Once again the Bank failed to establish its entitlement to summary judgment as a matter of law. See id. The Bank’s final issue is overruled.

IV

We affirm the trial court’s order denying the Bank’s motion for summary judgment on the quantum meruit and negligent misrepresentation claims. We reverse the trial court’s order granting the County’s motion for summary judgment on the contract claim and the order denying the Bank’s motion for summary judgment on the contract claim. We render judgment that the County take nothing by way of its contract claim and remand the cause for further proceedings on the County’s non-contract claims.

      . In any event, under our holding, the County is not entitled to attorney’s fees on its contract claim.

      . Nor do we believe such a motion could be successful, although as the County now wishes to argue, certain duties do exist thereunder, not found on the signature cards.

      . The Bank cites other cases for arguments not made to the trial court. One of the most fundamental aspects of due process is the opportunity of adequate notice and the right to respond.


text:
    Patricia Ann PARRISH and Rena Davis, Appellants, v. Melba Laverne RUTHERFORD, Administratrix of the Estate of Claude J. Rutherford, Deceased, Appellee.
    No. 13-01-724-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Jan. 22, 2004.

      Lester R. Buzbee III, Humble, for Appellant.
    Joe Micah Enis, The Woodlands, J. Martin Green, Green & Green, Beaumont, John Stephen Green, Green & Green, Con-roe, Kristin Anglin, Mansfield, for Appel-lees.

      Before Justices HINOJOSA, RODRIGUEZ, and MAURICE Amidei.

      . Former Justice Maurice Amidei, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov’t Code Ann. § 74.003 (Vernon Supp.2004).

   OPINION

Opinion by Justice MAURICE AMIDEI (Assigned).

Patricia Ann Parrish and Rena Davis, appellants, appeal from an order declaring heirship after a bench trial. Appellants claim in seven issues that: (1) the trial court erred in finding that Kristin Anglin was a daughter of Claude J. Rutherford, deceased, notwithstanding Anglin’s statement she did not want to be involved with the proceedings; (2) there was no evidence or insufficient evidence to support such finding; (3) the trial court erred in denying appellants’ motion for default judgment; and (4) the trial court erred in allowing the administratrix to act as an advocate for Anglin and allowing the ad-ministratrix corresponding attorney’s fees. We affirm.

Standard of Review

The appellant’s brief must contain the following: a succinct, clear, and accurate statement of the arguments made in the body of the brief with appropriate citations to authorities and to the record. Tex. R.App. P. 38.1(g)(h).

No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment, or probably prevented the appellant from properly presenting the case to the court of appeals. Tex.R.App. P. 44.1(a)(1),(2).

Where a defendant has filed an answer but fails to appear for trial, a judgment by default is improper. Bibby v. Preston, 555 S.W.2d 898, 901 (Tex.Civ.App.Tyler 1977, no writ); see Tex.R. Civ. P. 239.

In reviewing no evidence points, we must review the evidence in a light which tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992).

Analysis

Appellants assert in their first issue that the trial court erred in failing to grant their motion for default judgment as to Kristin Anglin. Appellants incorrectly state that Anglin filed no answer. In the instant case, the trial court had properly appointed an attorney ad litem for the decedent’s unknown heirs pursuant to the request in appellee’s application for community administration, as it indicated service was to be made by publication. Tex.R. Civ. P. 244; Tex. Prob.Code Ann. §§ 34A, 49(b), 50(b), 53(b) (Vernon 2003); Cahill v. Lyda, 826 S.W.2d 932, 933 (Tex.1992) (trial court must appoint attorney ad litem to represent defendants served with citation by publication who fail to file an answer or appear before the court). The attorney ad litem appointed to represent the unknown heirs of the deceased, whose names and/or whereabouts were alleged as unknown, filed an answer on Anglin’s behalf denying appellant Parrish’s allegation that appellants Parrish and Davis were the deceased’s only children. The trial court does not have authority to render a default judgment if an answer has been filed. Tex.R. Civ. P. 239.

Appellants cite no authority that Anglin’s presence at trial was required to avoid a default judgment, or that it was error for the trial court to deny a motion for default judgment in the same or similar situation. See Tex.R.App. P. 38.1(h). Moreover, it appears that Anglin did appear at the time the ease was set for trial, but did not appear the second day or the next day the case was reset.

Appellants further claim that Anglin requested that she be dismissed or withdrawn from the case, and also allege that Anglin had no justiciable interest in the matter. However, the record does not indicate Anglin withdrew or was dismissed from the case. Under the probate code, a child of the deceased who may be living, whose name or whereabouts are unknown, has a justiciable interest in a declaration of heirship proceedings, even if disputed. Tex. Peob.Code Ann. § 53(b) (Vernon 2003). Anglin’s justiciable interest in the case was evidenced by appellee’s applications for community administration and for letters of administration.

The case cited by appellants, Seyffert v. Briggs, 727 S.W.2d 624 (Tex.App.-Texarkana 1987, writ ref'd n.r.e.), is not on point. Seyffert involved a pleading defect which the trial court wrongly refused to correct. Id. at 626. The case does not address the issue of whether the trial court wrongly refused a default judgment because the defendant had no justiciable interest. See id. at 626-27.

Appellants’ first issue is overruled.

Appellants’ second and third issues assert that the trial court erred in allowing the attorney ad litem to testify that, in his opinion, Anglin was a daughter of the deceased, and in allowing the attorney ad litem to represent Anglin. Contrary to the appellate rules, the appellants do not clearly develop an argument or cite any authority to support these issues. See Tex.R.App. P. 38.1(g),(h).

Moreover, we would overrule these issues on the merits. The record shows that the attorney ad litem withdrew as Anglin’s attorney ad litem six months before trial. Further, Melba Rutherford, the widow of the deceased, and Suzie Mayo Smith, Ang-lin’s mother, both testified that Anglin was a daughter of the deceased. We conclude that, even excluding the ad litem’s testimony, there was sufficient evidence before the trial court that Anglin was a daughter of the deceased.

Appellants’ second and third issues are overruled.

Appellants’ issues four and five contend the trial court erred in allowing the administratrix to act as an advocate for Anglin and allowing the administratrix corresponding attorney’s fees. Appellants made a request for a partial reporter’s record by requesting the record in two hearings, but failed to request a record regarding the hearing on attorney’s fees held October 3, 2001. Tex.R.App. P. 34.6(c)(1). Further, appellants’ notice of appeal failed to specify they were appealing the October 3, 2001 order awarding attorney’s fees. Tex.R.App. P. 25.1(d)(2). This issue is not preserved for appeal. Tex.R.App. P. 25.1, 33.1.

Even assuming appellants perfected an appeal regarding attorney’s fees, the administratrix was entitled to recover attorney’s fees incurred in the management of the estate. Tex. PROb.Code AnN. § 242 (Vernon 2003). Appellants’ opinion that the administratrix’s use of an attorney was wasteful is unsupported by the record or any authority. TexR.App. P. 38.1(g),(h). Further, appellants waived any objection or challenge to standing because they failed to make an exception, objection, motion or plea in abatement prior to the issue being joined on the merits. Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213-14 (1960); see Tex.R.App. P. 33.1(a)(l)(A)(B).

Moreover, appellants incorrectly state that the administratrix is not a “party” in interest in the heirship hearing and appeal. The only authority cited by appellants, Muse, Currie & Kohen v. Drake, 535 S.W.2d 343 (Tex.1976), does not apply because it involved an administratrix in a will contest who lacked standing because she was not an interested party, whereas, the instant case is a suit for determination of heirship by a personal representative who has the statutory duty to determine the existence of any potential heirs and their respective interests. See id. at 343-44.

Provisions of the Texas Probate Code which define whether a person is an heir, or an interested person who has standing, are as follows:

“Heirs” denote those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate. Tex. Peob.Code Ann. § 3(o). (Vernon 2003).
“Interested persons” or “persons interested” means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered; and anyone interested in the welfare of a minor or incompetent ward. Tex. PROb.Code Ann. § 3(r). (Vernon 2003).
A proceeding to declare heirship may be instituted and maintained by the personal representative of the estate. Tex. Peob.Code ANN. § 49. (Vernon 2003).

Distribution of the net assets of an estate to the heirs is one of the primary duties of a personal representative. Bailey v. Cherokee Cty. Appraisal Dist., 862 S.W.2d 581, 584 (Tex.1993).

By awarding attorney’s fees, the trial court did not make an error of law which probably caused the rendition of an improper judgment, or probably prevented the appellants from properly presenting the case to the court of appeals. Tex. R.App. P. 44.1(a)(l)(2).

Appellants’ fourth and fifth issues are overruled.

Appellants’ issues six and seven argue there was no evidence or insufficient evidence that Anglin was a daughter of the deceased. Appellants contend that the testimony of Suzie Mayo Smith, Anglin’s mother, that the deceased was Anglin’s father amounted to no more than a scintilla of evidence when compared with the remaining testimony.

In reviewing no evidence points, we must review the evidence in a light which tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Weirich, 833 S.W.2d at 945. As noted previously, Melba Rutherford also testified that Anglin was one of the deceased’s daughters. The testimony of Melba and Suzie support the trial court’s finding that Anglin is a daughter of the deceased, and we disregard appellants’ testimony and evidence to the contrary. The trial court’s finding was supported by more than a scintilla of evidence. See id.

Appellants’ sixth and seventh issues are overruled.

The judgment of the trial court is affirmed.


author: Justice GARZA.

text:
    In re Robert E. DE LA GARZA.
    No. 13-03-753-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 17, 2004.
    Anne Vandewalle, San Antonio, for relator.
    Tom Harmon, San Antonio, A. Peter Thaddeus, Jr., McAllen, for real party in interest.
    Before Justices YÁÑEZ, RODRIGUEZ and GARZA.
   OPINION

Opinion by

Justice GARZA.

On December 22, 2003, relator, Robert E. De La Garza, filed a petition for writ of mandamus asking this Court to direct respondent, Judge Noe Gonzalez of the 370th District Court of Hidalgo County, to rescind or vacate his order of November 18, 2003 compelling relator to attend a post-judgment deposition noticed by the real party in interest, National Investors, L.P. Relator argues that the post-judgment discovery order at issue is void because the underlying judgment is void. On January 9, 2004, the real party in interest filed a response to relator’s petition, in which it argued, inter alia, that the discovery order was not void because relator’s bankruptcy proceeding was not successfully completed. Having reviewed and considered the arguments and authorities presented by each side, we conditionally grant a writ of mandamus directing respondent to vacate his order of November 18, 2003.

Background

This mandamus proceeding arises from a suit to collect on a note, which was filed by the real party in interest against relator on August 18, 1992. On March 1, 1994, relator filed a voluntary bankruptcy petition in the United States Bankruptcy Court for the Southern District of Texas, McAllen Division. On March 28, 1994, the real party in interest was awarded a final judgment against relator on its suit. Subsequently, on April 21, 1994, relator’s bankruptcy petition was ordered dismissed.

Approximately nine years later, in the spring of 2003, the real party in interest noticed relator to appear at a deposition to obtain discovery in aid of judgment. The deposition was scheduled for April 1, 2003, but relator did not appear. On April 8, 2003, the real party in interest filed a motion to compel discovery, which was granted by respondent on November 18, 2003. This mandamus proceeding ensued.

Analysis

Mandamus is an extraordinary writ and will issue only to correct a clear abuse of discretion that cannot be remedied on appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992, orig. proceeding); In re Steiger, 55 S.W.3d 168, 170 (Tex.App.-Corpus Christi 2001, orig. proceeding). Mandamus is appropriate to obtain judicial review of a trial court’s post-judgment discovery order. See Collier Servs. Corp. v. Salinas, 812 S.W.2d 372, 375 (Tex.App.-Corpus Christi 1991, orig. proceeding); see also In re Amaya, 34 S.W.3d 354, 356 (Tex.App.-Waco 2001, orig. proceeding).

A trial court has inherent power and authority to enforce its judgments. Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982, orig. proceeding); see also Tex Gov’t Code Ann. § 21.001(a) (Vernon Supp.2004); Tex.R. Civ. P. 308, 621a; Ex parte Gorena, 595 S.W.2d 841, 844 (Tex.1979, orig. proceeding); S.W. Bell Mobile Sys. v. Franco, No. 13-99-186-CV, 2000 Tex.App. LEXIS 8073, at *3 (Corpus Christi Nov. 30, 2000, no pet.) (not designated for publication). But if the judgment is void, the trial court has no ability to enforce it. Cf. Enis v. Smith, 883 S.W.2d 662, 663 (Tex.1994, orig. proceeding) (“A void judgment will not support a turnover order.”).

Relator argues that the judgment in this case is void because it was taken in violation of the bankruptcy code’s automatic stay. See 11 U.S.C. § 362 (2003). Relator cites Howell v. Thompson, 839 S.W.2d 92, 92 (Tex.1992) and Cont’l Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988) as direct Texas Supreme Court authority on this issue. According to the real party in interest, however, actions taken in derogation of the automatic stay are not void but merely voidable. The real party in interest relies on In re Jones, 63 F.3d 411, 412 (5th Cir.1995), Picco v. Global Marine Drilling Co., 900 F.2d 846, 850 (5th Cir.1990), and Sikes v. Global Marine, Inc., 881 F.2d 176, 178 (5th Cir.1989).

The issue, then, is whether this Court should follow the United States Court of Appeals for the Fifth Circuit or the Texas Supreme Court in determining the effect of the bankruptcy code’s automatic stay on a state court judgment. In Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex.1993), the Texas Supreme Court explained: “While Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate federal rule of decision, they are obligated to follow only higher Texas courts and the United States Supreme Court.” Thus, when faced with the very issue posed to us today, the Fort Worth Court of Appeals decided to “follow ... Howell and hold that state court actions taken in violation of the automatic stay are void.” In re Sensitive Care, Inc., 28 S.W.3d 35, 39 (Tex.App.Fort Worth 2000, orig. proceeding); see also Paine v. Sealey, 956 S.W.2d 803, 806 (Tex.App.-Houston [14th Dist.] 1997, no writ) (“[W]e are not bound by Sikes.”).

In light of the aforementioned precedent, as well as our own Court’s prior opinions, we hold that all state court actions taken against a debtor in violation of an automatic stay pursuant to the bankruptcy code are void. See In re S.W. Bell Tel. Co., 6 S.W.3d 753, 754 (Tex.App.-Corpus Christi 1999, orig. proceeding); Graham v. Pazos De La Torre, 821 S.W.2d 162, 164 (Tex.App.-Corpus Christi 1991, no writ); see also In re S.W. Bell Tel. Co., 35 S.W.3d 602, 604 (Tex.2000, orig. proceeding); Padrino Maritime, Inc. v. Rizo, 130 S.W.3d 243, 247 (Corpus Christi 2004, no pet. h.) (memorandum opinion).

The real party in interest, however, points out that no opinions from Texas courts discuss the effect of the dismissal of a bankruptcy case on actions taken against a debtor during the stay. In this case, relator’s bankruptcy petition was dismissed less than a month after the real party in interest secured a final judgment in state court. The real party asks that we retroactively validate the void judgment based on the bankruptcy court’s dismissal of relator’s bankruptcy petition. Although the real party correctly asserts that dismissal of a bankruptcy action prior to discharge has the effect of undoing the bankruptcy insofar as is practical, see 11 U.S.C. § 349 (2003), a void judgment is a nullity and cannot be resurrected. See In re Guardianship of B.A.G., 794 S.W.2d 510, 511 (Tex.App.-Corpus Christi 1990, orig. proceeding) (“A void judgment is one entirely null within itself, and which is not susceptible of ratification or confirmation, and its nullity cannot be waived.”).

Accordingly, we hold that the judgment rendered against relator is void and that the post-judgment discovery order is likewise void. On this basis, we conditionally grant a writ of mandamus compelling respondent to vacate his order of November 18, 2003. The writ will issue only upon respondent’s refusal to act in accordance with the direction given by this opinion.


author: Chief Justice VALDEZ.

text:
    Maria Del Carmen LARA and Lucio Guerra, Appellants, v. Romeo ROSALES, Appellee.
    No. 13-02-208-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 19, 2004.
    Rehearing Overruled April 8, 2004.

      Moisés M. Salas, Jr., Brownsville, Susan Renee Sullivan, Griffith, Saenz & Hill, McAllen, for appellants.
    Jose R. Guerrero, Montalvo & Ramirez, McAllen, for appellee.
    Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
   OPINION

Opinion by

Chief Justice VALDEZ.

Appellants, Maria Del Carmen Lara and Lucio Guerra, appeal a no-answer default judgment awarding appellee, Romeo Rosales, $125,000 in actual damages and $18,562.50 in prejudgment interest. By two issues, appellants contend the trial court erred when it denied their motion for new trial because: (1) they satisfied the Craddock test; and (2) service of process against Lara was defective. We reverse and remand for a new trial.

I. Facts and Procedural History

On November 19, 1999, Lara rear-ended appellee’s vehicle while he was stopped at a stop sign. The vehicle Lara was driving was owned by her grandfather, Lucio Guerra. Guerra was not involved in the car accident. Appellee filed suit on September 4, 2001 alleging that Lara was negligent in her operation of the motor vehicle, and claiming Guerra negligently entrusted Lara with his vehicle. Guerra was served with process at his home in Pharr, Texas on November 8, 2001. Lara was served with process on December 5, 2001 at her home in Lynchburg, Virginia. Appellants failed to file an answer, and a default judgment was entered against them on January 9, 2002.

II. Discussion

By appellants’ first issue, they argue the trial court abused its discretion in denying their motion for new trial because they satisfied the Craddock test for setting aside a default judgment. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939).

A trial court’s ruling on a motion for new trial will not be disturbed absent an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987). Under the Craddock test, a default judgment will be set aside and a new trial ordered if: (1) the defendant’s failure to answer was not intentional, or the result of conscious indifference, but was due to a mistake or accident; (2) the motion sets up a meritorious defense; and (3) the motion is filed at a time when granting the motion would not delay or injure the plaintiff. See id. at 779; Craddock, 133 S.W.2d at 126; Moya v. Lozano, 921 S.W.2d 296, 298 (Tex.App.-Corpus Christi 1996, no writ). A trial court abuses its discretion by denying a motion for new trial when all three elements of Craddock have been met. Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994). We now consider whether appellants satisfied the Craddock test.

A. Conscious Indifference

Some excuse, but not necessarily a good excuse, is sufficient to set aside a default judgment, so long as the failure to file an answer was accidental. See Craddock, 133 S.W.2d at 125; Jackson v. Mares, 802 S.W.2d 48, 50 (Tex.App.-Corpus Christi 1990, writ denied). The controlling factor under the first prong of Craddock is the absence of an intentional failure to answer. Craddock, 133 S.W.2d at 125; In re A.P.P., 74 S.W.3d 570, 573 (Tex.App.-Corpus Christi 2002, no pet.). Further, if the factual allegations in a mov-ant’s affidavit are not controverted, “it is sufficient that the motion and affidavit set forth facts which, if true, would negate intentional or consciously indifferent conduct.” Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984); Jackson, 802 S.W.2d at 50. If the non-movant presents evidence at trial showing conscious indifference, then it becomes a question for the trial court to determine. Jackson, 802 S.W.2d at 50.

Here, the uncontroverted factual allegations show that Guerra, who was not involved in the accident and not fluent in English, relied on his granddaughter to “take care of the problem.” Lara, who was living in Lynchburg, Virginia, stated in her affidavit that she unsuccessfully attempted to contact her insurance company as soon as she was aware of the suit. Further, Lara’s affidavit shows that she traveled to Texas from Virginia to attend the hearing on the motion for the entry of a default judgment. The record and un-controverted affidavits shows that Lara and Guerra both attended the default hearing without an attorney in an attempt to answer appellee’s allegations. However, they were not allowed to answer or respond to appellee’s allegations.

Guerra’s conduct and reliance on Lara to take care of the suit establishes that he did not act with conscious indifference because he was not involved in the car accident, was not fluent in English, and attended the default judgment hearing in order to respond to appellee’s allegations. Further, Lara’s actions also show that she did not act with conscious indifference because she traveled from Lynchburg, Virginia to attend the default judgment hearing in order to avoid a default judgment. We find appellants’ affidavits and motion sufficient to establish they did not act with conscious indifference. See Craddock, 133 S.W.2d at 125; In re A.P.P., 74 S.W.3d at 573.

B. Meritorious Defense

A meritorious defense is established “by alleging facts, supported by an affidavit or other evidence, which in law would constitute a defense to the cause of action pled by the plaintiff.” In re A.P.P., 74 S.W.3d at 574-75. It is a defense “that, if proved, would cause a different result upon a retrial of the case, although it need not be a totally opposite result.” Jackson, 802 S.W.2d at 51. The movant is not required to prove the truth of a meritorious defense before trial, and the motion for new trial should not be denied on the basis of contradictory evidence offered by the non-movant. In re A.P.P., 74 S.W.3d at 575.

Here, Guerra’s affidavit states that he let Lara, his granddaughter, use his car because she was a licensed, careful, and competent driver. Further, appellants’ motion for new trial stated appellee’s own negligence may have caused the accident because he “initially started to proceed through the intersection [and then] suddenly stopped and caused the accident.” We find that appellants’ alleged facts, which if proven, would constitute a meritorious defense to appellee’s causes of action. See Jackson, 802 S.W.2d at 51.

C. Delay or Injury

Under the third prong of Craddock, the court balances an equitable principle in determining if granting a new trial would unduly delay or injure the non-movant. Dir., State Employees Workers’ Comp. Div., 889 S.W.2d at 270. The movants’ willingness to go to trial immediately, and their offer to pay the default judgment expenses are important, but not dispositive factors. Id. at 270 n. 3. The purpose of the final Craddock factor is to prevent “undue delay or injury that would disadvantage [the appellee] in presenting the merits of their case at a new trial, such as a loss of witnesses or other valuable evidence.” Id. at 270; Jackson, 802 S.W.2d at 52.

Here, appellants stated they could proceed immediately to final and offered to reimburse appellee for the costs of obtaining a default judgment. See Dir., State Employees Workers’ Comp. Div., 889 S.W.2d at 270. Further, appellee did not contend that granting a new trial would prevent him from presenting the merits of his case, or that he would lose witnesses or other valuable testimony. See id.; Jackson, 802 S.W.2d at 52. We find appellants established that granting a new trial would not unduly delay or prejudice appellee.

Accordingly, we find the trial court abused its discretion when it denied appellants’ motion for new trial because appellants met the Craddock test.

III. Conclusion

Having sustained appellants’ first issue, it is not necessary to address appellants’ remaining issue. See Tex.R.App. P. 47.1. We reverse and remand this case for a new trial.


text:
    Elva ZUNIGA, Appellant, v. Antonio SALAZAR, Appellee.
    No. 13-03-190-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 26, 2004.

      Harold Kenneth Tummel, Lydia Casso Tummel, Tummel & Casso, McAllen, for Appellant.
    Michele N. Gonzales, Skaggs & Garza, L.L.P., John B. Skaggs, Skaggs & Gonzales, McAllen, for Appellee.
    Before Chief Justice VALDEZ and Justices YÁÑEZ and CASTILLO.
   OPINION

Opinion by

Chief Justice VALDEZ.

This is an appeal of a take-nothing verdict rendered against appellant, Elva Zuni-ga. Appellant sustained injuries in an apartment fire and brought suit against appellee, Antonio Salazar, pursuant to sections 92.259-92.260 of the property code, alleging that appellee, her landlord, did not install a working smoke detector in her apartment at the time of her initial occupancy. Appellee asserted that he did install a smoke detector with a working battery. The jury answered three liability questions in favor of appellee and found appellant suffered zero damages. The trial court denied appellant’s motion for a new trial and granted appellee’s motion for entry of judgment. This appeal ensued.

In her sole issue, appellant contends the jury’s verdict was tainted with passion or prejudice requiring reversal of the judgment and entitling her to a new trial. Notably, appellant does not challenge the jury’s liability findings. Rather, appellant contends the passion or prejudice is shown by the award of zero damages despite uncontradicted evidence of severe injuries and medical expenses.

The issue of damages becomes immaterial when the jury finds no liability. Southern Pine Limber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335 (1939); Hancock v. City of San Antonio, 800 S.W.2d 881, 887 (Tex.App.-San Antonio 1990, writ denied); Temple v. Zimmer, 678 S.W.2d 723, 725 (Tex.App.-Houston [14th Dist.] 1984, no writ). Where a jury has answered issues concerning liability in the negative and the negative finding is supported by the evidence, the failure of the jury to award damages is not error. Andrade, 124 S.W.2d at 335; Neese v. Dietz, 845 S.W.2d 311, 315 (Tex.App.-Houston [1st Dist.] 1992, writ denied); Johnson v. Whitehurst, 652 S.W.2d 441, 449 (Tex.App.-Houston [1st Dist.] 1983, writ refd n.r.e.). In such a case, even if the jury awarded damages, the trial court would still be required to enter a take-nothing judgment. Dunn v. Sears Roebuck & Co., 371 S.W.2d 731, 736 (Tex.Civ.App.-Houston 1963, writ ref'd n.r.e.).

Here, the jury specifically found that, at the time of appellant’s initial occupancy of the apartment, appellee had successfully tested the smoke detector and equipped the smoke detector with an adequate battery. The jury also found appellant’s own negligence proximately caused her injuries. Appellant did not challenge these liability findings on appeal, nor did she properly preserve in the trial court the issue of the sufficiency of the evidence in support of the jury’s liability findings. Thus, she waived our review of the sufficiency of the evidence supporting the liability findings. See Tex.R.App. P. 33.1(a), 38.1(h). Accordingly, the jury’s failure to award damages is immaterial and not error. See Andrade, 124 S.W.2d at 335; see also Temple, 678 S.W.2d at 725 (finding damage issue immaterial without reviewing sufficiency of evidence on liability findings where liability findings were negative and no challenge to liability findings made).

We affirm the judgment of the trial court.

      . Tex. Prop.Code Ann. §§ 92.259-92.260 (Vernon Supp.2004).

      . Appellant did not raise the issue in her motion for a new trial.


text:
    In re H & R Block, et al.
    No. 13-04-059-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    March 24, 2004.

      Layne E. Kruse, Terriann Trostle, Heather Fleniken, Joy M. Soloway, Fulbright & Jaworski, Houston, Rudy Gonzales, Jr., Catherine D. Tobin, Gonzales, Hoblit & Ferguson, Corpus Christi, Frank E. McLain, Dallas, for relators.
    Austin Tighe, Vic Feazell, Austin, Jerry Guerra, Daniel G. Covich, Bryan K. Harris, Harris Mejia, Darrell L. Barger, Corpus Christi, Paul M. Weiss, Todd A. Lewis, Freed & Weiss, Chicago, IL, Bradley M. Lakin, Thomas L. Lakin, Lakin Law Firm, Richard J. Burke, Wood River, IL, for real party in interest.
    Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
   OPINION

Opinion by

Justice GARZA.

On February 2, 2004, relators, H & R Block, H & R Block and Associates, L.P., H & R Block Tax Services, Inc. (“Tax Services”), H & R Block, Ltd., and HRBO II, Inc., filed a petition for writ of mandamus and an emergency motion to stay proceedings. The petition requested that this Court direct respondent, Judge J. Manuel Banales of the 105th District Court of Kleberg County, to vacate his order of January 30, 2004, which denied relators’ motion for continuance. Relators also asked that this Court further instruct respondent: (1) to hear relator Tax Service’s special appearance in Cause No. 01-032-D before hearing any other motion filed by relators and prior to hearing a motion for partial summary judgment filed by the real party in interest, Desiri L. Soliz; and (2) to rule on class certification before ruling on the motion for partial summary judgment. The emergency motion requested that this Court direct respondent to stay certain pre-trial proceedings scheduled for February 5, 2004.

This Court stayed all proceedings in the underlying action and requested a response from the real party in interest. The response was filed on February 19, 2004 and requested sanctions against rela-tors. Having reviewed and considered the arguments and authorities presented by both sides, we deny relators’ petition for writ of mandamus and the real party in interest’s request for sanctions.

I. Background

This mandamus proceeding arises from a class action suit filed by Soliz against relators. The suit alleges that relators have engaged in the unlawful practice of selling insurance without a license. Soliz contends that the “peace of mind” guarantees sold in connection with relators’ tax preparation services constitute insurance policies. Although Soliz included a prayer for certification in her live petition, no hearings on certification have been scheduled and no motion for certification has been filed. The class remains uncertified.

In response to the suit, relator Tax Services filed a special appearance, contesting the trial court’s exercise of personal jurisdiction. Subsequently, all five relators, including Tax Services, filed a motion to compel arbitration, a motion to transfer venue to Travis County or Dallas County, and a plea to the jurisdiction. Tax Services participated in these filings subject to its special appearance. Soliz then filed a motion for partial summary judgment in which she asked the trial court to decide as a matter of law that: (1) the “peace of mind” guarantees constitute insurance; and (2) parties selling these guarantees are engaged in the unlawful sale of insurance without a license. The motion, however, was filed against only two of the five relators: H & R Block Ltd. and HRBO II, Inc.

The trial court scheduled hearings on these matters as follows. Relators’ plea to the jurisdiction, motion to compel arbitration, and motion to transfer venue were to be heard on February 5, 2004. The real party in interest’s motion for partial summary judgment was also to be heard that day. A hearing on Tax Services’ special appearance was to be held on February 20, 2004.

In response to this schedule, relators filed two motions for continuance requesting that the court stay the proceedings set for February 5 (except those regarding discovery on the special appearance) until after Tax Services’ special appearance was heard on February 20. Relators also requested that the court delay hearing Sol-iz’s motion for partial summary judgment until after deciding whether to certify a class of plaintiffs. In an order dated January 30, 2004, the trial court denied both motions. This mandamus ensued.

II. Analysis

Mandamus is an extraordinary writ and will issue only to correct a clear abuse of discretion that cannot be remedied on appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig.proceeding); In re Dryden, 52 S.W.3d 257, 261 (Tex.App.Corpus Christi 2001, orig. proceeding). The burden of showing an abuse of discretion as well as the inadequacy of a remedy by appeal is on the relator. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994) (orig.proceeding). It is a heavy burden. Lutheran Social Serv., Inc. v. Meyers, 460 S.W.2d 887, 889 (Tex.1970) (orig.proceeding).

In the case at bar, relators argue that the trial court committed two abuses of discretion that each warrant relief by writ of mandamus. The first was its decision to hear the real party in interest’s motion for partial summary judgment before deciding whether a class of plaintiffs may be certified. The second was its refusal to decide Tax Services’ special appearance before the pending motions and plea to the jurisdiction. Of these two rulings, we conclude that only the latter constituted an abuse of discretion. Nevertheless, mandamus relief is not appropriate.

A. Motion for Partial Summary Judgment

Under rule 42(c)(1), “As soon as practicable after the commencement of an action brought as a class action, the court shall, after hearing, determine by order whether it is to be so maintained.” Tex.R. Civ. P. 42(c)(1). Relators contend that the trial court’s order denying their motion for continuance violated rule 42(c)(1) because it allows a decision on the merits imper-missibly to precede a certification determination. Relators, however, have cited no Texas precedent to support their position. We have before us no binding authority that says “as soon as practicable” means “before anything else” or that it means “before a merits determination.” To the contrary, “as soon as practicable” indicates a discretionary authority in the trial court to determine the appropriate time for ruling on a motion for class certification. In the absence of any binding authority supporting relators’ contention, we cannot say that the trial court abused its discretion.

In a different approach to the same argument, relators maintain that the order denying their continuance was an abuse of discretion because notice must be given to the class members prior to a determination on the merits. We agree with this proposition but reject relators’ conclusion that the trial court abused its discretion. Under rule 42(c)(2), “After the court has determined that a class may be maintained it shall order the party maintaining the class action to direct to the members of the class the best notice practicable under the circumstances.... ” Tex.R. Civ. P. 42(c)(2); see Kondos v. Lincoln Prop. Co., 110 S.W.3d 716, 723 (Tex.App.-Dallas 2003, no pet.) (“The requirements for class notice set forth in rule 42(c)(2) and (3) make clear that notice is to be given to the class prior to a determination on the merits.”). Importantly, rule 42(c)(2) imposes on the court the duty to direct notice to members of the class only “after the court has determined that a class may be maintained.” Furthermore, as we have explained previously, until the trial court certifies a class, a suit brought as a class action is treated as if it were brought by the named plaintiffs suing on their own behalf. Palais Royal v. Partida, 916 S.W.2d 660, 653 (Tex.App.-Corpus Christi 1996, no pet.). No class has been certified in this case, and therefore, no notice is owed to potential class members under the plain language of rule 42(c)(2).

Nevertheless, relators cite the Dallas court’s decision in Kondos and maintain that potential class members must be given notice and an opportunity to opt-out before a trial court addresses the merits of the class claims. Kondos, 110 S.W.3d at 723. Kondos is distinguishable from the instant case. In Kondos, the trial court certified a class of plaintiffs, and in the same order, it decided a merits issue. Id. In this case, no class has been certified, no motion for class certification has been filed, and no hearing is set on class certification issues. In short, there is no reason to believe a class will be certified. In Kondos, the court certified a class and then, without notice to the class, proceeded to rule on the merits of its claims. Id. In Kondos, but not in this case, the trial court had a clear duty to notify potential class members under the plain language of rule 42(c)(2). Based on these differences, we conclude that Kondos is not controlling.

Relators also argue that deciding an issue that goes to the merits of a class claim before certification is an abuse of discretion under the Texas Supreme Court’s Beeson decision. Intratex Gas Co. v. Beeson, 22 S.W.3d 398 (Tex.2000). In Beeson, the certification order defined the class in such a way that a plaintiff would know whether he or she were a member of the class only after a merits determination. Id. at 405. The supreme court reversed the certification, holding that:

A proposed class definition that rests on the paramount liability question cannot be objective, nor can the class members be presently ascertained; when the class definition is framed as a legal conclusion, the trial court has no way of ascertaining whether a given person is a member of the class until a determination of ultimate liability as to that person is made.

Id. at 404. This case presents a different situation. There has been no certification of a class and no creation of a “fail-safe” class. We cannot use Beeson to say that the trial court abused its discretion.

In sum, relators have not established a clear abuse of discretion. We deny their request for mandamus relief regarding the denial of them continuance of the real party’s motion for partial summary judgment.

B. Special Appearance

Next, we consider Tax Services’ argument regarding its special appearance. Under rule 120a(2), “Any motion to challenge the jurisdiction provided for herein [(¿e., a special appearance)] shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.” Tex.R. Civ. P. 120a(2). Tax Services argues that the trial court’s schedule violated this rule because it called for the court to hear a motion to transfer venue and a plea to the jurisdiction before hearing and determining Tax Services’ special appearance. We agree. The rules of civil procedure give the trial court no discretion to hear a motion to transfer venue or any other plea or pleading before hearing and determining a special appearance. Id.; see Tex.R. Civ. P. 84 (“Matters shall be heard in such order as may be directed by the court, special appearance and motion to transfer venue, and the practice thereunder being excepted here-from.”) Thus, the trial court erred in denying relators a continuance of all motions and pleas until after the special appearance was heard and decided.

Having established an abuse of discretion, we must now determine whether an adequate remedy will be available to Tax Services on appeal. See Walker, 827 S.W.2d at 842 (describing the inadequate appellate remedy requirement as a “fundamental tenet” of mandamus practice). A party establishes that no adequate remedy at law exists by showing that the party is in real danger of losing its substantial rights. Canadian Helicopters, 876 S.W.2d at 306. An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842.

Mandamus relief is generally not available to review the denial of a motion for continuance. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex.1997) (orig.proceeding) (“In the absence of any other error, we would not grant extraordinary relief merely to revise a trial judge’s scheduling order, however perverse.”) (emphasis added). Only when there are “special circumstances” will the court’s order on a continuance be the proper subject of a mandamus proceeding. See id.

“Special circumstances” are present where other errors exist that are themselves properly reviewed on petition for writ of mandamus. For instance, in Gayle, the supreme court reviewed the denial of a motion for continuance that sought to extend the deadline for paying jury trial fees. See id. at 476. The relator paid the fees beyond the court’s deadline, which according to the trial court, foreclosed a trial by jury. See id. On petition for writ of mandamus, the relator raised two errors: one involving a discovery order and another regarding its motion to continue the deadline for paying jury trial fees. Id. at 470-71. After reviewing the discovery order error and concluding that mandamus relief was appropriate to correct it, the supreme court decided that the “special circumstances” of the case put the second error properly before it on petition for writ of mandamus, even though taken alone, the denial of a motion for continuance, even one that foreclosed a trial by jury, could not otherwise be properly reviewed in a mandamus proceeding. See id. at 477. The supreme court noted that the denial of a jury trial could be reviewed by ordinary appeal but decided that given the “special circumstances” of the case, judicial economy dictated that the jury trial error be reviewed on petition for writ of mandamus along with the discovery order error. Id.

Similarly, in a ease decided one year after Gayle, the supreme court held that “special circumstances” were present where the trial court had made two discovery rulings that were each properly before the court on mandamus review. In re Colonial Pipeline Co., 968 S.W.2d 938, 943 (Tex.1998) (orig.proceeding). Based on these “special circumstances,” it held that a third error, which extended the time for the plaintiff to respond to written discovery requests, was also reviewed properly on petition for writ of mandamus. See id. Notably, the supreme court did not address whether the third error could be reviewed by ordinary appeal. See id. Instead, it concluded that given the “special circumstances” of the case, the interests of judicial economy dictated that the supreme court review the scheduling order on petition for writ of mandamus. Id.

This case lacks the “special circumstances” necessary to make an order denying a motion for continuance available for review on petition for writ of mandamus. We are therefore without authority to issue an extraordinary writ to correct the trial court’s ruling.

Without addressing the supreme court’s bright-line rule on this issue, relators argue that if the trial court is permitted to consider matters before the special appearance in contravention of rule 120a, any remedy on appeal will not be able to undo that course of events. According to rela-tors, if Tax Services’ special appearance is not heard first, but is heard fourth or fifth, then that cannot be remedied by a later appeal. In its petition, Tax Services asserts a right to expeditious release from the lawsuit and claims that right is violated and cannot be restored if the trial court hears the special appearance after a motion to transfer venue or a plea to the jurisdiction.

Although these arguments do not lack intuitive logical appeal, supportive precedent is conspicuously absent. Relators have cited no case law in which mandamus relief was awarded under circumstances such as those presented by this case. They have referred us to no cases that establish the inadequacy of appellate review to remedy the abuse of discretion committed by the trial court. We agree with relators that a special appearance is to be heard first and that it is not to be heard second, but we disagree that rule 120a creates a substantial right that would be lost permanently if a special appearance were to be heard second and not first. Given the absence of any supportive case law, we conclude that relators’ assertion of a right to “expeditious release from the lawsuit” is little more than a legal contrivance intended to circumvent the supreme court’s admonition that increased expense and delay will not render an otherwise suitable appellate remedy inadequate. See Walker, 827 S.W.2d at 842; Canadian Helicopters, 876 S.W.2d at 306. Tax Services has a right to challenge personal jurisdiction. If the trial court denies its special appearance, Tax Services has a right to interlocutory appellate review of that decision. See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2004). That remedy is adequate.

III. Conclusion

Having reviewed relators’ petition for writ of mandamus, the real party in interest’s response, and relators’ reply, this Court, after consideration of all arguments and authorities, denies the petition and lifts the stay granted on relators’ emergency motion. The real party in interest’s request for sanctions is denied.