Mandamus Relief Conditionally Granted and Opinion filed March 31 , 2020
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00884

- CV

IN RE CIT BANK, N.A. , Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 127th District Court Harris County, Texas Trial Court Ca use No. 2010

- 11491


### MEMORANDUM OPINION

On November 5, 2019, relator C IT Bank, N.A. filed a petition for writ of

m andamus in this Court. See Tex. Gov’t Code Ann. § 22.221 ; see also Tex. R. App. P. 52. Relator argue s the trial c ourt ’ s J uly 1 1, 2019 order v acating an agreed final judgment was signed after the court ’ s plenary power expired and is void for lack of juris diction

. Mandamus is appropriate when the trial court issues an order after the expiration of its plenary power. In re Southwes t ern Bell Tel. C o ., 35 S.W.3d 602,2

605 (Tex. 2000 ). Because an order issued after the expi ration of a court’s plenary power is void, “the relator need not show it did not have an adequate appellate remedy .” Id.
The underl y ing suit was filed by t he re al par ty in i ntere st , J. M. Arpad Lam ell, against r elator for claims rel ated to t he servicing of Lamell ’ s home

mortgage loan. On May 16, 2019, the trial c ourt signed an agreed final judgment. The judgment dismissed all claims with prejudice and conta i ns language of finality , st ating, “ All relief not expressly granted herein is den ied. This Order disposes of all parties and all claims and is therefore final. ” See Lehmann v. Har Con Corp ., 39 S.W.3d 191, 206 (Tex. 2001)

. On July 11, 20 19, the trial cour t signed an o rder vacating t hat judgment.
Relator asserts the trial court ’ s plenary power expired thirty days after the j udgment was signed

. See Tex. R. C iv. P. 329b(d) , (e)

. L am ell argues t he trial
court ’ s plenary power was ext ended 3 0

- days to July 15, 2 019 , b y the J une 11, 2019 fi ling of his “ O pposition to Motion to Release Funds from ILO T A A ccount

. ”
A trial court ’s p lenary powers can be extended by timely filing an appropriate p ost

-

judgment motio n, such as a motion for new trial or a motion to modify , correct, or r eform the judgme nt

. Lane Bank Equip. Co. v. S mi th S. Equipment, Inc. , 10 S.W.3d 308, 310 (Tex. 2000) ; Tex. R. C iv. P. 329b(g)

. An

“ appro priate po st

-

judgment motion ” seek s a substantive c hange i n the trial c ourt ’ s judgment. See Lane Bank , 10 S.W.3d at 314 ( “ We accordingly hold that a timely fi led post

-

judgment motio n that seeks a substantive change in an existing judgment qualifies as a motion to modify under Rule 329b(g), thus extending the tria l court’s plenary jurisdiction and the appellate timetable. ” )

.3

W ithin the thir ty

- day period after t he agree d final judgm ent was signed, the fol lowing occurred :

• On May 24, 2019, a MOTION TO RELEASE FUNDS FROM IOLTA ACCOUNT was filed by Dyk ema Gossett PLLC (“Dykema” ),
c ounsel for R elator ;

• On June 11, 20 19, Lamell fi le d an OPPOSITION TO MOTION TO RELEASE FUNDS FROM IOLTA ACCOUNT ; and

• On June 13, 2019, a hearing was held at which the trial court stated,

“ I ’ m going to vacate

-- let us all u nderstand these things to be true: I ’ m going to vac ate the nonsuit or the dismis sa l

. ”
The funds a t issue ar e che cks from Farmers’ Insurance sett ling claims for losses caused by Hurrican e Harv ey . The checks were made out to Lamell, O cwen Loan Se r vicing, LLC, and C hase Bank, N.A. Relator ’ s motion asked to releas e the funds to Ocwen

— the s uccessor to r ela tor as the ser vicer on the loan

. In his o pposition to the motion to release funds , Lamell pointed out t he judgment di d not address Ocwen ’s claims to the funds in the IOL TA acc oun t

. According to Lamell , those c laims we re not viable based up on s tatute of li mitations . T he o ppos ition states it was clear to all parties that those claim s had not been resolved and wo u ld be the subject of fu rther litigation

. Lamell suggested th is meant th e judgment was not final and asked f or a sever ance
. Lamell ’ s

o pposition did n ot request the trial court modify, correct, or reform the existing judgment

. In his respons e to the pe ti tion , Lam ell refers to his (PROPOSED) ORDER AUTHORIZIN G RELEASE AND TRA NSFER OF INSURANCE SETTLEMENT FUNDS FROM DYKEMA I OLTA ACCOUNT TO4

OCWEN/PHH , whic h was attached to his o pposition

. The only portion of the order referring to the judgment is as follows: 2) The issuance of this ORDER, the subsequent t ransfer of P roceeds from DYKEMA’s IOLTA Trust Account to OCWEN/PHH purs uant to this OR DER, and any sub sequent release of Proceeds to Lamell do not indicate, nor do they represent , no r can they be used as evidence indicating or representing:

. . . . e) that any final det ermination or adjudication has been made as to the merits of claims, is su es, or questions of fact dismissed with prejudice by this Court’s final judgment at the conc l usio n of this action between Lamell and CIT.
T his also does not seek to modify, corr ect , or reform the judgment

. Accordingly, it could not ope rate as a post

- ju dg ment motion to e xtend the trial court ’ s plenary
power.
A trial court has plenary power over its judgment until it becomes final. Fruehauf Corp. v. Carrillo , 848 S.W.2d 83, 84 (Tex. 1993). Th e judgment in this case was final as the intent to finally d is pose of the case i s unequivoca lly expressed in the words of the order itself

. Lehmann , 39 S.W.3d at 200

. Whether t he trial court still had plenary power when it vacated the judgment on J uly 11, 2019, is a question of law that we review de n ovo
. Tex. Dep ’ t of Parks & Wildli fe v. Miranda , 133 S .W.3d 217, 226 (Tex. 2004) ; see a lso Coleman v. Sitel Corp ., 21 S.W.3d 411, 413 (Tex. App.

— S an Antonio 2000, no pet.) (question of trial court ’ s jurisdiction to vacate judgment after plenar y power expire d was questio n of law reviewed de novo ). Because no “ appro priate po st

- judgment motion ” seek ing a substantive c hange in the trial c ourt ’ s final ju dgment was filed,5

the trial court ’ s plenary power was not exte nded

. See Lane Bank , 10 S.W.3d at 314 ; Tex. R. C i v. P. 329b(g)

. The trial court ’s plenary po wer be gan to run on May 16, 2019 , when the final judgment was signed. It was not extended by an appropriate post

- judg ment motion and therefore expi re d on June 17, 2019 ( th irtieth day, J une 15, 2019, was a Saturday). See Tex. R. C iv. P. 329b (g)

. T he tr ia l court ’s statement on June 13, 2019, that it was going to v acate was made within its ple nary power, but i t was not vacated until July 11, 2019 , after the trial court ’s plenary power expired

. A n oral pronouncement is generally ineffective to extend a cou rt ’ s plenary power , unless the oral pronouncement clearly indicates the intent to modify a judgment at the time the words are expressed, making the reduction to writing a mere min isterial
act. See State v. Nayl or , 466 S.W.3d 783, 788 (Tex. 2015)

. An o r al pronouncement indicating a trial court ’ s intention to render judgment in the future is not a present rendition of judgment. Id.
A ccordingly, we hold the trial court ’ s J uly 11, 2019 orde r is void . On this basis, we grant the req uested mandamus relief

. c om pe lling respondent to vacate his order of July 11, 2019 . The writ will issue only if respondent does not vaca te the July 11, 2019 order.

PER CURIAM

P anel c onsists of Justices Zimmerer , Spa in , and Hassan

.