VOLUME INCOME PROPERTIES INC CWC LLC v. LLC (2026)

OPINION

Appellee Jessica Hansen sued appellants on several claims relating to the construction of a house. The trial judge signed a series of four default judgments, each of which imposed liability on only one or two appellants but also contained verbiage characteristic of a final judgment. Further complicating the matter, Hansen filed an amended petition between the signing of the first and second default judgments.

After the trial judge signed the fourth default judgment, appellants filed a motion for new trial and a restricted appeal. The trial judge granted a new trial only as to appellant Chris LaMont. Then three appellants filed a petition for writ of mandamus arguing that the second, third, and fourth default judgments were void for lack of plenary power. Then, out of an abundance of caution, appellants filed an appeal from the new-trial orders. We consolidated the mandamus petition and the second appeal into the restricted appeal. Much later, the trial judge dismissed the remainder of the case for want of prosecution.

We sort this case out as follows. Each default judgment contained enough indicia of finality to make it a final judgment under Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). However, because Hansen filed an amended petition after the trial judge signed the first final default judgment, the amended petition commenced a new, independent case under the same cause number. See Florance v. State, 352 S.W.3d 867, 872 (Tex. App.—Dallas 2011, no pet.). The second default judgment was issued in the original case, but only after plenary power had expired, so it is void. The third and fourth default judgments were both rendered in the second case, but plenary power expired before the judge signed the fourth default judgment, the new-trial orders, and the dismissal for want of prosecution, all of which are therefore void.

Accordingly, we conditionally grant mandamus relief as to the second default judgment, the fourth default judgment, and the orders signed after the fourth default judgment. We dismiss part of the restricted appeal as to appellants Focis Holding Group, LLC and Chris LaMont because they were not parties to the first default judgment. And we reject appellants' other appellate arguments and affirm the two subsisting final judgments in the two cases below.

I. Background

A. Procedural History

In March 2023, Hansen sued appellants Volume, CWC, and Calvin LaMont (hereafter “Calvin” to distinguish him from appellant Chris LaMont) on several different legal theories. She alleged that she hired Volume as the general contractor to build a house in Dallas, Texas. She further alleged that in August 2022 she terminated defendants because they failed to pay subcontractors and did faulty work, among other things.

On April 26, 2023, the trial judge signed a no-answer default judgment against Volume that awarded Hansen almost $240,000 in damages and almost $2,000 in attorneys' fees. Although the judgment did not mention CWC or Calvin (except in the style of the case), the judgment concluded, “Any and all relief not awarded is hereby denied. This is a final and appealable judgment.”

On May 22, 2023, Hansen filed a first amended petition in which she again sued Volume, CWC, and Calvin, and she added appellants Chris LaMont (“Chris”) and Focis Holding Group, L.L.C. as defendants. In this pleading she added some new details, such as allegations that Calvin and Chris purported to operate under the aegis of Focis during the contract negotiations but then contracted with Hansen under the names of Volume and CWC. She asserted claims that included breach of contract, common-law fraud, negligent misrepresentation, negligence, fraudulent transfer, alter ego, and attorneys' fees.

On June 29, 2023, the trial judge signed a no-answer default judgment against CWC and Calvin. This judgment, which referenced only Hansen's original petition, awarded Hansen about $431,000 in damages and about $5,700 in attorneys' fees. Although the judgment did not mention any of the other named defendants (except in the style of the case), the judgment concluded, “Any and all relief not awarded is hereby denied. This is a final and appealable judgment.”

On July 27, 2023, the trial judge signed a no-answer default judgment against Focis. This judgment, which referenced only Hansen's amended petition, awarded Hansen about $431,000 in damages and about $8,600 in attorneys' fees. Although the judgment did not mention any of the other named defendants (again except in the style of the case), the judgment concluded, “Any and all relief not awarded is hereby denied. This is a final and appealable judgment.”

On September 20, 2023, Hansen filed a motion for default judgment against Chris. The trial judge signed a no-answer default judgment against Chris the next day. This judgment awarded Hansen about $431,000 in damages, almost $95,000 in attorneys' fees, and $1,185 in expenses. Again, the judgment did not mention any of the other named defendants (except in the style of the case), and it concluded, “Any and all relief not awarded is hereby denied. This is a final and appealable judgment.”

On October 23, 2023, all appellants filed a joint motion for new trial.¹ On October 26, 2023, all appellants filed a joint notice of restricted appeal that challenged all four default judgments. We assigned the appeal case number 05-23-01068-CV.

On November 16, 2023, the trial judge heard appellants' new-trial motion. Appellants argued that the April 2023 default judgment against Volume was a final judgment. Hansen disagreed, arguing that the September 2023 default judgment against Chris was the only final judgment. The trial judge took the motion under advisement.

On November 22, 2023, Chris, Calvin, and Focis filed a joint petition for writ of mandamus in this Court, arguing that the default judgments signed in June, July, and September were void for lack of plenary power. We assigned the petition case number 05-23-01183-CV.

On November 20, 2023, the trial judge signed two orders. One granted appellants' motion for new trial solely as to Chris. The other denied appellants' motion for new trial as to Volume, CWC, and Calvin. Neither order mentioned Focis.

On December 1, 2023, we issued an order consolidating the mandamus proceeding into the restricted appeal. We also stayed collection efforts regarding the July and September default judgments.

On December 12, 2023, appellants filed another joint notice of appeal, this time complaining about the orders on appellants' motion for new trial. We consolidated this new appeal (No. 05-23-01265-CV) into the restricted appeal.

B. Temporary Abatement for Settlement

In April 2024, appellants filed a notice of settlement in this Court, and all parties joined in a motion to abate the appeal. The parties advised that they had reached a settlement and asked us to abate the appeal until October 21, 2024. We granted the joint motion to abate, and the appeal remained abated until January 2025. Then we received a status report from appellants advising that they had been “unable to fulfill the payment terms of their settlement agreement” with Hansen. We reinstated the appeal, the parties filed their briefs, and we submitted the case with oral argument.

Meanwhile, on March 13, 2025, the trial judge signed an order dismissing the case—which apparently consisted only of Hansen's claims against Chris, by virtue of the trial judge's order granting Chris's new-trial motion—for want of prosecution.

II. Mandamus

We first consider the mandamus petition filed by relators Focis, Calvin, and Chris. Relators contend that

• the April 2023 default judgment against Volume was a final judgment;

• the trial court's plenary power expired thirty days later; and

• all subsequent default judgments in this case are void.

Hansen disagrees with these premises. As discussed below, we agree with relators in part.

A. Standard for Mandamus Relief

Ordinarily, a relator seeking mandamus relief must show both that the trial judge clearly abused her discretion and that the relator lacks an adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). However, when a trial judge issues an order in a case after plenary power has expired, the order is void, and the relator need not show that it lacks an adequate remedy by appeal. See In re Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014) (orig. proceeding) (per curiam).

A trial judge abuses her discretion if (1) she fails to analyze or apply the law correctly or (2) she can reasonably reach only one decision regarding a factual or discretionary matter and she fails to do so. See In re C.J., 689 S.W.3d 417, 420 (Tex. App.—Dallas 2024, no pet.).

B. The Law Governing Plenary Power and Judgment Finality

“[A] final judgment starts the clock for when a trial court loses its plenary power—its jurisdiction to revise its judgment or, with some exceptions, ․ to take any other actions in the case.” Patel v. Nations Renovations, LLC, 661 S.W.3d 151, 152–53 (Tex. 2023) (per curiam) (citation omitted).

If an order or judgment is rendered without a conventional trial, the test for whether it is a final judgment for plenary-power purposes is the one laid down by Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), and its progeny. See, e.g., In re Elizondo, 544 S.W.3d 824, 827–29 (Tex. 2018) (orig. proceeding) (per curiam) (applying Lehmann test to determine whether order removing a lien was final judgment for plenary-power purposes); In re Daredia, 317 S.W.3d 247, 248–50 (Tex. 2010) (orig. proceeding) (per curiam) (applying Lehmann test to determine whether default judgment was final for plenary-power purposes). Under the Lehmann test, a judgment rendered without a conventional trial is final if (1) it disposes of all remaining claims and parties, regardless of its language, or (2) it “include[s] unequivocal finality language that expressly disposes of all claims and parties.” Sealy Emergency Room, L.L.C. v. Free Standing Emergency Room Managers of Am., L.L.C., 685 S.W.3d 816, 820 (Tex. 2024) (citing Lehmann, 39 S.W.3d at 200). Under the test's second prong, a judgment is final if the judgment clearly and unequivocally states that it finally disposes of all claims and all parties, and no further inquiry into the record is permitted. See Patel, 661 S.W.3d at 154; Elizondo, 544 S.W.3d at 828.

This case raises questions under the second prong of Lehmann, so we briefly review Lehmann and its progeny.

Lehmann held that a Mother Hubbard clause, meaning words to the effect of “all relief not granted is denied,” by itself is insufficient to make an order or judgment final for purposes of appeal. 39 S.W.3d at 203–04. The Lehmann opinion also suggested that finality is not automatically effected by use of the word “final” in an order's title or body, by a statement that the order is appealable, or by an award of costs. Id. at 205. However, the Lehmann Court opined that finality could be effected with this statement: “This judgment finally disposes of all parties and all claims and is appealable.” Id. at 206.

Since Lehmann, the Supreme Court has held that judgments were clearly and unequivocally final under Lehmann's second prong in a few cases:

• An order removing a lien was a final judgment because it said, “This judgment is final, disposes of all claims and all parties, and is appealable. All relief not granted herein is denied.” Elizondo, 544 S.W.3d at 825, 827.

• A judgment confirming an arbitration award was a final judgment because it said that it was a final judgment and was appealable, it authorized writs and processes to aid in execution of the judgment, and it said that “all relief not granted herein is denied.” Patel, 661 S.W.3d at 153, 155.

• A default judgment that failed to mention one of the defendants was final because it concluded, “All relief not expressly granted herein is denied. This judgment disposes of all parties and all claims in this cause of action and is therefore FINAL.” Daredia, 317 S.W.3d at 248–49.

We recently catalogued several indicia that can combine to make a judgment final under Lehmann's second prong:

• a statement that the judgment is final;

• a statement that the judgment is appealable;

• a statement that the judgment disposes of all parties and all claims;

• a statement that all relief not granted is denied;

• an award of costs;

• an award of prejudgment interest;

• an award of postjudgment interest; and

• an order authorizing enforcement of the judgment.

Black v. Nunez, No. 05-23-00003-CV, 2023 WL 3595357, at *1–2 (Tex. App.—Dallas May 23, 2023, no pet.) (mem. op.). In Black, the judgment said, “This is a final judgment and can be appealed”; it awarded costs, prejudgment interest, and postjudgment interest; and it authorized enforcement by execution and other processes. Id. at *1. We held that these indicia were sufficient to make the judgment final and thus to trigger the appellate deadlines. Id. at *1–2.

C. Application of the Law to the Facts

1. The April 2023 default judgment against Volume was a final judgment.

Under the authorities discussed above, we conclude that relators are correct that the April 2023 default judgment against Volume was indeed final for purposes of plenary power and appellate deadlines. That judgment assessed specific amounts of damages and attorneys' fees against Volume. It awarded Hansen prejudgment interest, postjudgment interest, and costs.² And it concluded, “Any and all relief not awarded is hereby denied. This is a final and appealable judgment.” Although this combination of finality indicia does not precisely match any of the combinations that were held to establish finality in Elizondo, Patel, Daredia, and Black, it is similar to all of them. Indeed, it differs from the Black default judgment only in that the judgment before us does not mention enforcement mechanisms. See id. We conclude that the remaining indicia of finality suffice to make the default judgment's finality clear and unequivocal.

Hansen's argument that the Volume default judgment lacks sufficient indicia of finality is not persuasive. She points out that the Volume default judgment differs from the Patel judgment because the Volume default judgment does not mention enforcement mechanisms like writs and process to aid in execution. This is true, but the Volume default judgment contains additional finality indicia that were apparently missing in Patel, such as awards of costs, prejudgment interest, and postjudgment interest. Cf. Patel, 661 S.W.3d at 153. And the Volume default judgment, like the one in Patel, refers to itself as final and appealable, and it contains a Mother Hubbard clause. Thus, we disagree with Hansen's argument that Patel supports a lack of finality in this case.

Hansen cites In re Lakeside Resort JV, LLC, 689 S.W.3d 916 (Tex. 2024) (orig. proceeding) (per curiam), in which the Supreme Court held that a default judgment is not final, regardless of what the record shows, if it contains language that affirmatively undermines or contradicts finality. But in that case, the default judgment at issue said, among other things, “This Judgment finally disposes of all claims and all parties, and is not appealable.” Id. at 919 (emphasis added). The Court held that the phrase “not appealable” was enough to affirmatively undermine or contradict finality, thereby making the judgment nonfinal. Id. at 924. But the Volume default judgment before us does not contain similar language or any other language that affirmatively undermines or contradicts finality. Accordingly, Lakeside Resort is distinguishable.

Hansen also cites an Austin Court of Appeals case for the premise that a default judgment is not final if it disposes of only one of multiple defendants. See Jacobsen v. Power Monkey Motors, LLC, No. 03-24-00059-CV, 2024 WL 2429436, at *1 (Tex. App.—Austin May 24, 2024, no pet.) (mem. op.). The premise is correct, but it does not answer the question before us, which is whether the language of the Volume default judgment is clear and unequivocal enough to dispose of all the defendants in the case and thus be a final judgment. Jacobsen sheds no light on that question because it does not quote any of the language in the default judgment involved in that case. See id.

Hansen also cites Winton Mortgage Co., L.L.C. v. Livingston, No. 08-23-00184-CV, 2024 WL 3917019 (Tex. App.—El Paso Aug. 23, 2024, no pet.) (mem. op.), but that case is also distinguishable. In that case, the court of appeals held that a default judgment was not final because it contained only two indicia of finality: the word “final” appeared in the judgment's title, and the judgment contained a Mother Hubbard clause. Id. at *7. (We note that the court seems to have overlooked one other indicium of finality—an award of prejudgment interest. See id. at *2.) Because the Volume default judgment in this case contains more indicia of finality than the Winton Mortgage default judgment did, we conclude that Winton Mortgage is distinguishable.

Finally, Hansen argues that the record shows that the trial judge did not intend for the Volume default judgment to be final because she allowed Hansen to continue litigating the case against the other defendants long after signing the Volume default judgment. But the Supreme Court has made it clear that we cannot review the record in order to undermine finality if the judgment clearly and unequivocally states that it disposes of all claims and parties. See, e.g., Patel, 661 S.W.3d at 154. As discussed above, the Volume default judgment did just that.

For all these reasons, we hold that the April 26, 2023 default judgment against Volume was a final judgment for purposes of plenary power and appellate deadlines.

2. Hansen's amended petition commenced a second case against appellants.

Relators argue that all of the trial judge's post-April 2023 judgments are void because the Volume default judgment was final and the trial court's plenary power expired thirty days later. We agree that the trial court's plenary power over the Volume default judgment expired thirty days after signing, because no plenary-power-extending motion was timely filed. See Tex. R. Civ. P. 329b(e), (g) (providing that certain motions extend the trial court's plenary power).

However, relators' argument ignores Hansen's first amended petition, which she filed on May 22, 2023. When a trial judge renders a final judgment and a party then files an amended petition on which the trial judge later renders judgment, two distinct cases under the identical cause number result. Florance v. State, 352 S.W.3d 867, 872 (Tex. App.—Dallas 2011, no pet.); Cockrell v. Cent. Sav. & Loan Ass'n, 788 S.W.2d 221, 224 (Tex. App.—Dallas 1990, no writ) (per curiam); see also Leach v. Brown, 292 S.W.2d 329, 331 (Tex. 1956). Thus, the trial judge rendered a final judgment that awarded Hansen relief against Volume alone, and on May 22, 2023, when Hansen filed a first amended petition against the three previous defendants (Volume, CWC, and Calvin) and two new defendants (Focis and Chris), she commenced a new case under the same cause number.³ We will refer to the new case as the “second case.”

Next, on June 29, 2023, the trial judge signed a default judgment that imposed liability only on CWC and Calvin, and that contained the same finality indicia as the April 2023 default judgment against Volume. But this default judgment mentioned only Hansen's Original Petition, not her First Amended Petition. Moreover, Hansen's motion for default judgment that led to the CWC–Calvin default judgment relied on the Original Petition as the basis for relief. Accordingly, we conclude that the default judgment against CWC and Calvin was rendered in the first case, not the second case. And because the trial judge signed the CWC–Calvin default judgment after plenary power had expired in the first case, the CWC–Calvin default judgment is void.

On July 27, 2023, the trial judge signed a default judgment that imposed liability only on Focis. Because Focis was joined in the case only by Hansen's First Amended Petition, and because that default judgment mentioned only Hansen's amended petition, we conclude that the Focis default judgment was rendered in the second case. Although that judgment did not mention court costs, it otherwise contained the same finality language as the default judgment against Volume, so it was a final judgment. And no timely plenary-power-extending motion was filed after the Focis default judgment was signed, so the trial court's plenary power in the second case expired on August 28, 2023 (because August 26 was a Saturday). Accordingly, the trial court lost plenary power before Hansen filed her motion for default judgment against Chris on September 20, 2023, and both the September 21, 2023 default judgment against Chris and the 2025 order purporting to dismiss the case for want of prosecution are void for lack of plenary power.

D. Conclusion

In summary, we reach the following conclusions with respect to relators' petition for writ of mandamus:

• The April 26, 2023 default judgment against Volume is a final judgment.

• Hansen's First Amended Petition was in legal effect an original petition that commenced a second case bearing the same cause number as the original case.

• The June 29, 2023 default judgment against CWC and Calvin was rendered in the first case, but it was void because it was signed after the trial court's plenary power had expired.

• The July 27, 2023 default judgment against Focis is a final judgment that disposed of the second case.

• The trial court's plenary power over its final judgment in the second case expired in August 2023, so the following subsequent judgments and orders are void: (1) the default judgment against Chris; (2) the orders on appellants' motion for new trial; and (3) the order dismissing the case without prejudice for want of prosecution.

III. Appeal

Now we turn to the two issues appellants have raised by appeal. In their first issue, they argue that they are entitled to relief by restricted appeal. In their second issue, they argue that the trial judge erred by denying their motion for new trial as to Volume, CWC, Calvin, and Focis.

As we address appellants' appellate issues, we keep in mind that the consequence of our holdings in the consolidated mandamus proceeding is that there are only two subsisting judgments to be challenged—the April 2023 default judgment against Volume and the July 2023 default judgment against Focis.

A. Issue One: Are appellants entitled to relief by restricted appeal?

1. Applicable Law and Appellants' Arguments

When a party does not participate in person or through counsel in a hearing that results in a judgment, that party may be eligible for a restricted appeal. See Tex. R. App. P. 30; Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam). A party seeking relief by restricted appeal must prove (1) it filed its notice of restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. Pike-Grant, 447 S.W.3d at 886. The first three elements of a restricted appeal are jurisdictional, but the fourth element is not. Ex parte E.H., 602 S.W.3d 486, 497 (Tex. 2020). The “face of the record” consists of the reporter's record and all the papers on file in the clerk's record when the judgment or order was signed. Parimi v. Oliver, No. 05-24-00012-CV, 2024 WL 5001914, at *2 (Tex. App.—Dallas Dec. 6, 2024, no pet.) (mem. op.).

Appellants argue that they have satisfied all four elements of a restricted appeal. Regarding the fourth element, they argue that there are two errors apparent on the face of the record: (1) the trial court lacked plenary power to render the June, July, and September default judgments because the April default judgment against Volume was a final judgment, and (2) the evidence was insufficient to support the total amount of damages assessed against appellants.

2. Application of the Law to the Facts

a. The First Three Restricted-Appeal Elements

We consider the three jurisdictional elements of a restricted appeal together.

First, the record shows that appellants filed their notice of restricted appeal within six months after the signing of the two subsisting default judgments. Thus, the first element of a restricted appeal is satisfied.⁴

Second, the record shows that all five appellants were parties to the July 2023 default judgment that resolved the second case but only three appellants—Volume, CWC, and Calvin—were parties to the April 2023 default judgment that resolved the first case. Thus, appellants Focis and Chris cannot satisfy the second element of a restricted appeal as to the April 2023 default judgment, and we lack jurisdiction over their restricted appeals to the extent they relate to that judgment.

Third, we consider whether appellants participated in any hearings that resulted in the challenged judgments or filed any timely postjudgment motions or requests for findings of fact and conclusions of law. The computer-generated docket sheet indicates that no hearings were held before any of the default judgments were signed. The question, then, is whether appellants' motion for new trial, filed on October 23, 2023, was timely. We conclude that it was not. A motion for new trial must be filed within thirty days after the judgment complained of. Tex. R. Civ. P. 329b(a). Thus, appellants' motion for new trial was untimely as to the two subsisting final judgments, which were signed in April and July 2023. Although the new-trial motion appears timely as to the September 2023 default judgment, that judgment was void because it was signed after the trial court's plenary power had expired. Thus, appellants' new-trial motion was untimely as to the April 2023 judgment and the July 2023 judgment, and they have satisfied the third restricted-appeal element as to both judgments.

b. Error on the Face of the Record

Next we consider whether appellants have shown error on the face of the record as to either the April 2023 judgment against Volume or the July 2023 judgment against Focis. Appellants make two arguments.

First, appellants argue that the July 2023 judgment is void because the trial judge signed it after plenary power had expired. We reject this argument for the reasons stated in our mandamus analysis: a new case commenced in May 2023 when Hansen filed her first amended petition, and that case was finally resolved by the signing of the July 2023 final judgment. There is no plenary-power defect with respect to that judgment, so appellants' first argument fails.

Appellants' second argument complains that the four default judgments assess damages against appellants that, all totaled, exceed $1.5 million, but Hansen's damages evidence supports an award of no more than $431,372.98. See Thomas v. Martinez, 217 S.W.3d 680, 683 (Tex. App.—Dallas 2007, pet. struck) (noting that sufficiency-of-the-evidence claims can be reviewed in a restricted appeal). Of course, given our previous holdings, there are only two subsisting default judgments: the April 2023 judgment that holds Volume liable for damages of $239,841.98, and the July 2023 judgment that holds Focis liable for damages of $431,372.98. We therefore treat appellants' argument as challenging these two awards.

The default judgments were rendered without hearings and were based on documentary evidence filed by Hansen. The April 2023 judgment against Volume was supported by, among other things, Hansen's affidavit in which she testified that misconduct committed by “Defendant” caused her to incur various costs and expenses totaling $239,841.98. The April 2023 judgment requires Volume to pay exactly that amount to Hansen as damages. Appellants make no argument that the evidence supporting the April 2023 judgment, considered by itself, was insufficient. Accordingly, we conclude that appellants have not shown error on the face of the record with respect to the April 2023 judgment.

The July 2023 default judgment against Focis was supported by, among other things, a different affidavit by Hansen in which she testified that misconduct committed by “Chris and Calvin Lamont as Focis” caused her to incur various costs and expenses totaling $431,372.98. Those costs and expenses seem to include the same costs and expenses that Hansen proved up against Volume, plus an additional $191,531 necessary to complete the project in question. The July 2023 judgment requires Focis to pay Hansen exactly $431,372.98 as damages. Appellants do not argue that there are defects in Hansen's affidavit that make it insufficient to support the premise that Hansen suffered $431,372.98 in damages; rather, they appear to complain that the judgment does not make Focis's liability joint and several with Volume's, thereby permitting Hansen to recover more than her total proved-up damages of $431,372.98.

We reject appellants' argument regarding the judgment against Focis because it does not demonstrate error on the face of the record supporting that judgment—that is, the record in the second case. Again, as we stated above, there are actually two trial-court cases before us—one case that ended with the April 2023 default judgment against Volume, and a second case that began with the filing of Hansen's First Amended Petition and ended with the July 2023 default judgment against Focis. The record of that second case, thus, does not include the filings that led to the rendition of the April 2023 default judgment against Volume; consequently, the face of the record of the second case does not show that the judgment against Focis should be joint and several with any other party or entity. Thus, appellants' restricted appeal fails.

3. Conclusion

We lack jurisdiction over Focis's and Chris's restricted appeals of the April 2023 default judgment, and appellants have not otherwise shown error on the face of the record as to either subsisting default judgment. Accordingly, we overrule appellants' first issue to the extent we have jurisdiction to consider it.

B. Issue Two: Did the trial judge err by denying the motion for new trial as to appellants Volume, CWC, Calvin, and Focis?

In their second issue, appellants Volume, CWC, Calvin, and Focis argue that the trial judge erred by denying their motion for new trial because they proved defective service of process and alternatively proved the elements set forth in Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124 (Tex. [Comm'n Op.] 1939). We conclude that we cannot reach the merits of appellants' second issue on appeal in either of their two now-consolidated appeals.

We cannot consider appellants' new-trial complaints via their restricted appeal because a jurisdictional prerequisite of that appeal is that appellants did not file a timely postjudgment motion. See Pike-Grant, 447 S.W.3d at 886. As discussed above, appellants' new-trial motion was not timely as to either of the two subsisting judgments rendered by the trial judge. That fact supports our jurisdiction over appellants' restricted appeal, but it also means we cannot consider the new-trial motion in deciding their restricted appeal. See In re S.W., 614 S.W.3d 311, 315 (Tex. App.—Fort Worth 2020, no pet.) (holding that appellate court could not consider party's untimely new-trial motion in deciding restricted appeal). Accordingly, we overrule appellants' second issue to the extent they raise it via their restricted appeal.

Nor can we consider appellants' second issue via their ordinary appeal, perfected December 12, 2023, because that appeal was untimely. An order denying a motion for new trial is not independently appealable; rather, the appeal must be taken—timely—from the final judgment. See Tides on N. Collins Owner, LLC v. Dynamic Contractor, LLC, No. 05-24-01313-CV, 2025 WL 1314107, at *1 (Tex. App.—Dallas May 6, 2025, no pet.) (mem. op.). As discussed above, there are two subsisting final judgments, and they were signed on April 26, 2023, and July 27, 2023. Appellants did not timely perfect an ordinary appeal from either judgment. Accordingly, we lack jurisdiction to consider appellants' second issue via their ordinary appeal. See id.; see also Mitschke v. Borromeo, 645 S.W.3d 251, 253 (Tex. 2022) (“A timely notice of appeal is an essential prerequisite for the appellate court's jurisdiction.”).

IV. Disposition

We conditionally grant in part relators' petition for writ of mandamus as follows. We order the trial judge to vacate as void the June 29, 2023 default judgment against CWC and Calvin; the September 21, 2023 default judgment against Chris; the November 30, 2023 Order Denying Defendants' Motion for New Trial; the November 30, 2023 Order that granted a new trial as to Chris; and the March 13, 2025 Order of Dismissal. See Tex. R. Civ. P. 329b(f); In re Fernandez, No. 05-24-01017-CV, 2024 WL 5244619, at *2 (Tex. App.—Dallas Dec. 30, 2024, orig. proceeding) (mem. op.). We deny all other relief requested in relators' mandamus petition. We are confident that the trial judge will promptly comply with our order, and a writ will issue only if the trial judge fails to comply within fifteen days.

We dismiss for lack of jurisdiction the restricted appeals by Focis and Chris to the extent they relate to the April 26, 2023 default judgment against Volume. And we affirm the April 26, 2023 default judgment against Volume and the July 27, 2023 default judgment against Focis.

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.   The filemark on the motion and the computer-generated docket sheet indicate that the motion was filed on October 27, 2023. However, the mandamus and appellate records contain evidence that appellants efiled the motion on October 23, 2023, and that the motion was not filestamped at that time because Dallas County's efiling system was down. Moreover, in her appellee's brief Hansen agrees that appellants filed their motion for new trial on October 23, 2023. As will be seen, the discrepancy in the dates does not affect our analysis.

2.   We note that the trial judge erred by awarding Hansen a specific amount of costs. See 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. h.) (mem. op.) (“The trial court should state in its judgment which party is to pay costs. [But] the trial court erred by stating a specific amount taxed as costs.”). However, no one complains about this error.

3.   The dissenting opinion disagrees with this holding, arguing that we should disregard Florance because (1) Florance improperly extends Leach and Cockrell to situations involving amended pleadings filed within the plenary-power period after final judgment and (2) Florance thereby contradicts our prior opinion in Azbill v. Dallas County Child Protective Services Unit of Texas Department of Human & Regulatory Services, 860 S.W.2d 133 (Tex. App.—Dallas 1993, no writ). As to the first point, stare decisis compels us to follow Florance, regardless of its correctness—unless it contradicts an older, indistinguishable panel opinion. See Mitschke v. Borromeo, 645 S.W.3d 251, 257–58 (Tex. 2022). As to the second point, we disagree that Florance conflicts with Azbill. Unlike Florance, the Azbill case did not involve a postjudgment amended pleading, and, indeed, Azbill expressly distinguished Cockrell on that basis. 860 S.W.2d at 137. Accordingly, Azbill is distinguishable from Florance and this case.The dissenting opinion also argues that the Florance rule contradicts Rule 301, which prescribes that generally a civil case may have only one final judgment. But there is no contradiction because under Florance (and Cockrell, and Leach), a postjudgment amended pleading initiates a new civil case, which requires its own final judgment to come to an end. The dissent also points out that the new case may suffer from defects in terms of unpaid filing fees and lack of service of process, but the trial court and the other parties to the new case are free to object to these defects.

4.   The April 2023 and July 2023 default judgments were technically rendered in different cases (with the same case number), so arguably appellants should have filed two notices of restricted appeal. But appellants' notice of restricted appeal identified both subsisting default judgments as judgments being appealed from, identified the single trial-court case number that both judgments shared, and otherwise contained all necessary information. See Tex. R. App. P. 25.1(d). A second notice of appeal would have been redundant. On these facts, we conclude that appellants' notice is sufficient to appeal both judgments. Cf. Mitschke, 645 S.W.3d at 261–62 (noting that appellate courts should construe rules liberally “so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule”).

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.

Opinion by Justice Garcia

Lee, J., concurring and dissenting