VOLUME INCOME PROPERTIES INC CWC CONSTRUCTION RESTORATION CALVIN LAMONT CHRIS LAMONT AND FOCIS HOLDING GROUP LLC v. JESSICA HANSEN (2026)

CONCURRING AND DISSENTING OPINION

Old Mother Hubbard Appeared in the judgment, Shouting finality on the way.

But she wasn't intended To be so appended. At least that's what they say.

(adapted from Martin, Sarah, The Comic Adventures of Old Mother Hubbard and Her Dog, 1805).¹

I. Introduction

The Court's opinion does an exceptional job explaining the procedural history bringing us to this consolidated appeal and extraordinary writ action, including the history of the four ostensible judgments and the order dismissing the case for want of prosecution. To the extent I repeat or rephrase portions of the procedural history, I do so only for the purpose of clarity in the logical progression of this concurring and dissenting opinion.

The Court describes our efforts to “sort this case out.” The language used by the Court is not strong enough. This case presents a procedural morass, created by appellee's serial presentation to the trial court of final judgments, apparently without consideration of the meaning of the language contained in those presented documents and without contemplation of the rules governing finality of judgments and the concept of the trial court's plenary power; and by the trial court's signing of the judgments without consideration of same.

On April 26, 2023, the trial court signed a document entitled “Default Judgment.” The document was tendered by counsel for appellee Jessica Hansen. The final paragraph of the document reads:

Any and all relief not awarded is hereby denied. This is a final and appealable judgment.

The April 26 judgment awarded damages against the only defendant who arguably had been served, Volume Income Properties, Inc.; attempted to award pre-and post-judgment interest;² awarded costs;³ disposed of all claims and all parties with the stated Mother Hubbard ⁴ language; and concluded with the absolute confirmation that the judgment was indeed final: “This is a final and appealable judgment.” The Court concludes the April 26 judgment was final, despite the drafting errors in the judgment. I agree and concur in that holding. Because a motion for new trial was not filed, the trial court's plenary power expired on May 26, 2023. On this, too, I agree and concur. Therefore, I also join the Court in the conditional grant of mandamus relief regarding the second and fourth default judgments and the orders signed after the fourth judgment.

Where I part from the Court is the treatment of the effects of Hansen's actions following the April 26 judgment. I truly appreciate the Court's efforts to bring some semblance of order to this morass. And while I recognize the holding of Florance v. State, 352 S.W.3d 867, 872 (Tex. App.—Dallas 2011, no pet.), cited by the Court, and the holding in Leach v. Brown, 292 S.W.2d 329, 331 (Tex. 1956), on which Florance is based, I simply would not deem the May 22, 2023 amended petition as starting a new case under the same cause number. I explain my reasoning in part IV, below. And because I believe all actions taken by the trial court after May 26, 2023 were done without plenary power, I would grant the petition for writ of mandamus in full. Therefore, I respectfully dissent from that portion of the Court's opinion holding that the July 27, 2023 judgment against appellant/relator Focis Holding Group, LLC (the third default judgment) is a second final judgment.

II. Background

Appellee Jessica Hansen initially sued Volume Income Properties, Inc. (VIP), CWC Construction (CWC) and Calvin Lamont (Calvin). She obtained service upon VIP ⁵ but, as of April 26, 2023, had not served CWC or Calvin. She filed a motion for default judgment and tendered a proposed Default Judgment. The proposed judgment defined VIP as “Defendant” and contained various recitations, including that VIP had failed to answer and that the return of service had been on file the requisite ten days.⁶ The trial court signed the tendered Default Judgment on April 26, 2023 at 1:24:36 p.m.

The April 26 judgment awarded Hansen $239,841.98 in damages and $1,992.50 in attorney's fees. It awarded prejudgment interest “at the maximum amount allowed under Texas law, calculated from April 8, 2023,” and post-judgment interest “at the maximum amount allowed under Texas law.”⁷ It awarded Hansen costs in “the sum of $203.00.”⁸ The judgment contained Mother Hubbard language, “Any and all relief not awarded is hereby denied.” It concluded with finality language, “This is a final and appealable judgment.”

The April 26 judgment does not contain any language suggesting it is interlocutory, or interim, or partial, or anything other than a judgment ending this litigation. A person looking at the judgment can draw only one conclusion: that the

Default Judgment ended this litigation as of April 26, 2023 at 1:24:36 p.m., absent a subsequent effort to modify or set aside the judgment. On this I agree with the Court completely.

On May 18, 2023, the trial court signed an order authorizing substitute service on CWC and Calvin. The order does not in any respect suggest a reconsideration of or new trial regarding the April 26 default judgment.

On May 22, 2023, Hansen filed a first amended petition against VIP, CWC, Calvin, and two new defendants, Chris Lamont (Chris) and Focis Holding Group, LLC. In addition to the new defendants, the amended petition alleges an array of new causes of action, remedies, and damages, but nothing in the amended petition can be construed to be seeking a reconsideration or new trial of the April 26 judgment.

Nothing further was filed, and no further orders entered, by May 26, 2023. I agree with the Court: the trial court's plenary power regarding the April 26 judgment ended as of May 26, 2023. In my opinion, the subsequent actions taken by the trial court were void.

Hansen then obtained service on CWC and Calvin,⁹ neither of whom answered. Hansen moved for another default judgment. On June 29, 2023, the trial court signed another Default Judgment. Structurally, the judgment is identical to the April 26 judgment, though in this judgment the defendants are defined as CWC and Calvin, the damages awarded total $431,372.98, and the attorney's fees awarded total $5,730.50. Additionally, the trial court again erroneously stated the amount of court costs, but in this judgment the costs are stated to be $899.50. The June 29 judgment makes no reference to the April 26 judgment and does not suggest it supersedes the April 26 judgment. Like the April 26 judgment, the June 29 judgment contains no suggestion it is interlocutory. Like the April 26 judgment, the June 29 judgment concludes, “Any and all relief not awarded is hereby denied. This is a final and appealable judgment.”

Hansen then obtained service on Focis,¹⁰ which also did not answer. Hansen moved for default judgment against Focis. On July 27, the court signed another default judgment. In this judgment, the defendant is defined as Focis. The damages awarded are the same as in the June 29 judgment, $431,372.98, but the attorney's fees awarded now total $8,593.00. The structure of the pre-and post-judgment awards is identical to the April 26 and June 29 judgments, but the court does not endeavor to tax court costs in the July 27 judgment. The July 27 judgment does not suggest it supersedes the earlier judgments, nor does it state that it is interlocutory. The July 27 judgment concludes, “Any and all relief not awarded is hereby denied. This is a final and appealable judgment.”

Hansen then obtained service on Chris,¹¹ who likewise failed to answer. Hansen again moved for default judgment. On September 21, 2023, the trial court signed another Default Judgment. In this judgment, the defendant is defined as Chris. The damages awarded remain $431,372.98, but the attorney's fees award now totals $94,861.10 “under [Hansen's] split-fee agreement” plus the sum of $1,185.00 in expenses. The September 21 judgment awards pre-and post-judgment interest in similar language as the previous judgments and, like the July 27 judgment, it makes no reference to the taxation of costs. The September 21 judgment similarly does not suggest it supersedes the earlier judgments, nor does it state that it is interlocutory. The September 21 judgment concludes, “Any and all relief not awarded is hereby denied. This is a final and appealable judgment.”

No further motions were filed in the trial court, and no orders were signed, by October 23, 2023, which was the Monday following the expiration of thirty days following the September 21 judgment. I mention this for a reason: if the September 21 Default Judgment against Chris is a final judgment, despite it only being awarded against Chris and not awarding costs, the trial court's plenary power ended October 23, 2023.

On October 26, 2023, VIP, CWC, Calvin, Chris, and Focis collectively filed a Notice of Restricted Appeal. In the Notice of Restricted Appeal, CWC, Calvin, Chris, and Focis individually allege the trial court's plenary power expired May 26, 2023, rendering void the individual judgments against them. The next day, October 27, 2023, VIP, CWC, Calvin, Chris, and Focis filed a motion for new trial.

On November 30, 2023, the trial court signed orders on the motion for new trial. In one order, the trial court denied the motion for new trial as to VIP, CWC, and Calvin. In the second order, the trial court granted the motion as to Chris.¹² I again mention this for this reason: if the trial court had plenary power on November 30, 2023 to enter these orders,¹³ as of that date there is no final judgment against any party; and, the subsequent action by the trial court dismissing this action is the final judgment of the trial court. Further, if the trial court retained plenary power as of November 30, 2023, meaning the new trial order is effectual, we have no appellate jurisdiction until the entry of the subsequent because there is no final judgment against any party until the entry of the subsequent dismissal order.

On March 21, 2025, by signed order the trial court dismissed the action for want of prosecution. If the trial court had plenary power to dismiss the case in light of the November 30, 2023 new trial order, as of March 21, 2025 there is no judgment against any Defendant.

III. The Final April 26, 2023 Judgment

The obvious and, in my opinion, the proper path out of this procedural morass is to take the trial court at its word as expressed in the April 26, 2023 Default Judgment: that Hansen has judgment against VIP, “[a]ny and all relief not awarded is ․ denied,” and “[t]his is a final and appealable judgment.” That would mean all actions taken by the trial court after May 26, 2023 are void, and the petition for writ of mandamus should be granted.¹⁴

The second most obvious but, in my opinion, improper path is to agree with Hansen that the April 26, 2023 judgment is not a final judgment. Following Hansen's logic, however, means the June 29, July 27, and September 21, 2023 judgments similarly lack finality; and, the final judgment is the May 21, 2025 dismissal order. In that case, I would dismiss the restricted appeal for want of appellate jurisdiction and dismiss the mandamus action as moot.

The Court largely agrees. For reasons that are well-stated in the Court's opinion, which I will not belabor, we conclude the April 26 judgment is a final judgment. On this I concur.

IV. Actions Subsequent to the April 26, 2023 Judgment

Where I part from the majority is in the treatment of the May 22, 2023 amended petition as commencing a second case under the same cause number. I have two reasons for dissenting on this holding.

A. Florance v. State and Leach v. Brown

At the outset, I believe the holding of the Court in Florance is a misstatement of longstanding Texas law. It is an aberration and is in direct conflict with Rule 301 and other binding precedent from this Court.

In Florance, the court was presented with two final orders arising from the same cause number, one signed July 6, 2010, the second signed August 5, 2010. That is, the August 5 judgment was signed while the trial court retained plenary power over the July 6 final order.

Texas Rule of Civil Procedure 301 expressly provides that “[o]nly one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.” Our solution when a trial court signs two final judgments in the same case was to hold the second judgment to be a nullity unless the record shows that the trial judge intended to vacate the first and replace it with the second. See Azbill v. Dallas Cnty. Child Protective Servs. Unit of Tex. Dep't of Hum. & Regulatory Servs., 860 S.W.2d 133, 139 (Tex. App.—Dallas 1993, no writ). It appears Azbill may have been indirectly overruled in part by In re Vaishangi, Inc., 442 S.W.3d 256, 260 (Tex. 2014) (orig. proceeding) (per curiam), in which the Supreme Court stated that the second judgment becomes the operative judgment, not the first. But the rule remains. There is but one final judgment in “any cause.”

Despite that rule, the court in Florance followed Leach and ignored Azbill because an amended petition was filed between the two judgments. The Florance court deemed this amended petition as starting a new action, under the same cause number, despite the fact that none of the procedural requisites for filing a new suit were followed. These procedural requisites include such things as paying a new case filing fee and obtaining service of the new suit.

Leach is factually and procedurally distinguishable. On my reading, it does not provide guidance on the issues before this Court or to the issues decided in Florance. The plaintiff in Leach filed an action against her mineral rights lessees, claiming entitlement to certain royalty damages. 292 S.W.2d at 330. The trial court sustained a plea of non-joinder, which was considered a final, appealable order. The plaintiff appealed, and the court of civil appeals affirmed. The Supreme Court refused the plaintiff's application for writ of error on January 21, 1953. Id. At this point, the case was over.

More than six months later, on August 7, 1953, the plaintiff filed in the original cause number an “amended” petition seeking class action relief against numerous defendants, some eighteen of which were named and were claimed to be class representatives. Id. After another dismissal for non-joinder reasons was affirmed by the court of civil appeals, the Supreme Court confronted the so-called “amended petition.” The Supreme Court noted “there was no live pleading which [the amended petition] could amend.” Id. at 331. For that reason, the Supreme Court concluded that, despite it being misnamed an “amended” petition and it being “improperly docketed,” the pleading successfully invoked the jurisdiction of the district court. “The petition filed by appellant contained all the requisites of an original petition.” Id.

So too Cockrell v. Central Savings & Loan Association, 788 S.W.2d 221, 224 (Tex. App.—Dallas 1990, no writ) (per curiam), also cited by the majority. In Cockrell, the plaintiff/counter-defendant obtained a summary judgment on July 12, 1989, disposing of all issues in the case, including the claims asserted by plaintiff and those asserted by counterclaim. No motion for new trial or appeal was taken. On October 11, 1989, after the trial court's plenary power had expired, the counter-plaintiff filed an “amended” counterclaim in the same cause number, raising all new causes of action. We held that the “amended counterclaim constitutes a pleading initiating a second, distinct suit.” Id.

Like Leach, there was no live pleading in Cockrell for the amended counterclaim to amend. We properly followed the Supreme Court precedent to hold that this constituted the filing of a new suit, albeit it being “improperly docketed” in the same cause number. See Leach, 292 S.W.2d at 331.

While Hansen's amended petition was also filed post the April 26, 2023 judgment, it was filed during the time the trial court had plenary power. Therefore, unlike Leach and Cockrell, there was a live pleading for the amended petition to amend.¹⁵ I also believe the court in Florance was mistaken in following Leach and Cockrell; we make a similar mistake. In Florance, like Hansen's amended petition, the amended pleading was filed within the plenary power of the trial court, so it was actively amending a live pleading. Florance, 352 S.W.3d at 870 (the amended petition for bill of review was filed ten days after the dismissal for want of jurisdiction). It was not actually a misnamed original petition; it was truly an amended petition. It bore none of the indicia of being a new lawsuit, “improperly docketed” under the existing case number. The amended petition therefore lacks the defining characteristic on which Leach, Cockrell, and Williams turned.

In my opinion, the proper resolution of Florance should have been to follow Rule 301 and Azbill, with a holding that the July 6 final order was the final judgment, unless the record reflected that the August 5 final order was intended to vacate the July 6 order and replace it with the newer order.¹⁶

And our proper course is to follow Azbill and the express terms of Rule 301. The jurisdictional bright lines – there being only one final judgment and the time frames for trial court plenary power – serve an important purpose in defining finality of litigation. I am afraid we invite more procedural nightmares like those presented in this action by failing to strictly abide by those bright lines.

I simply cannot take the leap to conclude that the amended petition was the start of a new lawsuit, albeit under the same cause number. We should abide by the dictate of Rule 301 and hold the April 26 judgment to be the sole judgment in trial court cause number DC-23-03147.

We are sitting as a three-justice panel and are obligated to follow our own precedent. We may not overrule a prior panel decision of this Court absent an intervening change in the law by the Legislature, a higher court, or this Court sitting en banc. Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022). Which then presents a quandary: are we obligated to follow Florance or Azbill? The answer comes in my second reason for this dissent.

B. Hansen never asked for this relief.

In her briefing, Hansen never once suggested she started a new case under the same cause number by filing the amended petition on May 22, 2023. She posits a completely different argument, ignoring altogether the one judgment rule. She argues that each of the judgments was interlocutory when signed; that the trial court granted a new trial only to Chris, leaving the first three still-interlocutory judgments intact; and that the four interlocutory judgments became final when the court issued the dismissal order on March 21, 2025. Hansen suggests the dismissal order only dismissed the new trial granted to Chris, claiming “[t]hese default judgments only became final and appealable when the trial court issued the DWOP Order dismissing the new trial against Chris LaMont.”

Hansen therefore argues that there were four ultimately final judgments in this case. They were interlocutory when signed, then became final when the trial court dismissed the case for want of prosecution. The argument makes mincemeat of the one judgment rule, and Hansen offers no authority for the proposition that a court may issue four judgments in one case that become final upon the entry of a final order.

Appellants, on the other hand, consistently argued in accord with the one-judgment rule embodied in Rule 301 and applied by this Court in Azbill. They consistently claimed in the trial court and here that the April 26 judgment was the final judgment in this cause number.

I would rule in accord with the framing of the issue by the parties. I would apply Azbill and Rule 301, concluding that there is one final judgment, the April 26, 2023 default judgment against VIP. Because all the remaining judgments, including the dismissal order, were signed after the court lost plenary power, each of them is void.

V. Conclusion

Here is how I would sort out this case:

1. The April 26, 2023 Default Judgment against VIP is the final judgment;

2. I would conditionally grant the petition for writ of mandamus, instructing the trial court to rescind the June 29, 2023, July 27, 2023, and September 21, 2023 judgments and all subsequent orders; and,

3. Deny VIP's restricted appeal as untimely, for reasons stated by the court.

Because the Court ultimately takes another path, I respectfully dissent in part.

FOOTNOTES

1.   I open this opinion with a humorous adaption of a nursery rhyme to catch the reader's attention, to convince trial counsel throughout the Fifth Appellate District to read both the Court's well-written opinion and this opinion in their entirety, to spark an increased attention to the words used in judgments and orders, and ultimately to improve the quality of judgment and order drafting throughout the district.

2.   I explain my use of the word “attempted” in footnote 7, below.

3.   The award of costs was improperly stated in the judgment, as I explain in footnote 8, below.

4.   Mother Hubbard clauses are so-named metaphorically. Often stated “all relief not granted herein is expressly denied” or similar words, a Mother Hubbard clause conveys that it covers more than what is explicitly detailed. The clause was so-named in Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex. 1984) (op. on reh'g), which incidentally noted that inclusion of such a clause has no place in a partial summary judgment order which, of course, is intrinsically interlocutory.

5.   VIP denies she properly obtained service on VIP.

6.   Interestingly, the recitations do not state VIP had been served, only that VIP failed to answer. This, however, is not fatal to the finality of the judgment; I simply note it for counsel's and the trial court's edification.

7.   This attempt to award pre-and post-judgment interest does not comply with Texas law, as it fails to state the interest rate upon which the interest is to be calculated. “A money judgment of a court in this state must specify the post-judgment interest rate applicable to that judgment.” TEX. FIN. CODE § 304.001; see also McDonald v. Taber, No. 05-03-01642-CV, 2004 WL 2915312, at *4 (Tex. App.—Dallas Dec. 17, 2004, pet. denied) (mem. op.).

8.   The majority notes that it is improper for the trial court to award the amount of costs, quoting our recent holding in SL Nabors Commercial/Residential Roofing, Ltd. v. Allen, No. 05-24-00854-CV, 2026 WL 842104, at *9 (Tex. App.—Dallas Mar. 26, 2026, no pet.) (mem. op.). This has long been the rule. “[T]he court's role is to adjudicate which party or parties is to bear the costs of court, not to determine the correctness of specific items. The trial court should state in its judgment which party is to pay costs. The judgment should not state the amount taxed as costs, but only that costs are awarded against a certain party. Taxing costs, as distinguished from adjudicating those costs, is merely a ministerial duty of the clerk.” Madison v. Williamson, 241 S.W.3d 145, 158 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citations omitted); see also 2920 Park Grove Venture, Ltd. v. LandAmerica Am. Title Co., No. 07-07-00090-CV, 2008 WL 650946, at *1 (Tex. App.—Dallas Mar. 12, 2008, no pet.) (mem. op.) (“Whether a party is the ‘successful’ party and entitled to costs is determined by the court while the taxing or tabulation of costs is determined by the clerk.” (citations omitted) (emphasis in original)).

9.   CWC and Calvin both deny they were properly served.

10.   Focis denies it was properly served.

11.   Chris also denies he was properly served.

12.   In neither order did the trial court address the motion for new trial as to Focis.

13.   I agree with the Court that the trial court lacked plenary power to enter the orders.

14.   Alternatively, we could take up the restricted appeal, grant the restricted appeal of CWC, Calvin, Chris, and Focis, as the error – the trial court's lack of plenary power to issue the judgments against them – is apparent on the face of the record; and, deny VIP's restricted appeal, as the claimed error, deficiency in service, is not apparent on the face of the record. We would render judgment for CWC, Calvin, Chris, and Focis; and we would render judgment for Hansen against VIP. We would then dismiss the petition for writ of mandamus as moot.

15.   See also Williams v. Nat'l Mortg. Co., 903 S.W.2d 398, 403 (Tex. App.—Dallas 1995, writ denied) (observing that amended petition was filed as part of a suit no longer in existence but holding that “this fact did not defeat its validity as an independent lawsuit”).

16.   Of course, post-Vaishangi, Inc., the proper solution would be to hold the second order was the final judgment.

MIKE LEE JUSTICE