## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07
- 14
- 00344
- CV
IN RE JOSHUA EPPS, RELATOR
OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS October 13, 2014 

### MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Pending before the court is Joshua Epps’ petition for writ of mandamus wherein he requests that we “issue a writ of mandamus directing the Honorable Jim Bob Darnell to vacate his orders in Cause 2013

- 506,729, as any action by the district court in that matter is void

. ” Through four issues, Epps contends that 1) the trial court erred in entering tempor ary orders because it no longer had plenary power over the cause, 2) a bill of review does not revive jurisdiction, 3) the trial court abused its discretion by ordering Epps to pay at torney’s fees if he “appeal[ed] that other matter ,” and 4) Epps h ad no ad equate remedy at law because the trial court’s order is void. We deny the petition for writ of mandamus

. 1

1 Appended to the petition were six tabs. Several of the tab s contained a morass of documents unaccompanied by an index or table of contents. So, we were left to scroll up, down and through those tabs to determine the ir content and the relevance, if any, of the items included. This general, unindexed tender did li ttle to facilitate disposition of the proceeding, especially since many of the items were duplicates of others. Given the advent of e

- filing, parties would do well to index each separate item contained in an appendix or otherwise derive a method through w hich the appendix may be easily searched.2

Background On April 29, 2013, real party in interest, Melissa Jimenez (Jimenez) had her parental rights termina ted to the minor child, R.S.E, per he r affid avit relinquishing her int erest in the child. Via a separate proceeding, Adoption Covenant (an adoption agency) unsuccessfully sought to terminate Epps ’ parental right s to the child. Thereafter , the trial court appointed Epps as sole managing conservator on July 15, 2013 , via a third and independent proceeding that he commenced

. Adoption Covenant had served as the child’s managing conservator until th at time

. On September 4, 2013, Jimenez filed an original petition for bill of review reques ting that the judgment or final order in the termination proceeding be set aside. Adoption Covenant initially oppos ed the petition but then filed its own “counter

- petition” for bill of review also requesting that the decree be nullified . The trial court , via written order, denied the bill of Jimenez but granted that of Covenant on February 18, 2014. That is, it specified that : “[t]he relief for a Bill of Review as requested by the Counter

Petitioner ADOPTION COVENANT be GRANTED and that the April 29, 20 13 Order of Termination be set aside and that a new trial be granted.” (Emphasis in original). The order made no mention of Epps’ conservatorship. O n March 12, 2014, Jimenez petition ed to modify the parent

- child relationship , and the trial court heard same on September 16th and 17th of 2014. Thereafter, it orally pronounced temporary orders through which Jimenez was granted visitation to the child beginning on September 19, 2014. So too was she appointed joint managing conservato r of the child and given the exclusive right to make education al decisions for the child ove r whom she had previously relinquished her parental rights

. This petition for writ of mandamus followed before the trial court’s ora l pronouncements were3

memoriali zed in writing. In effect, Epps complains of the decision to grant the child’s biological mother rights as a conservator and to visitation

. Analysis Epps initially contends that the trial court had no jurisdiction to render an order granting Jimenez rig hts of a conservator in Cause Number 2013
- 506,729 . The latter was the cause through which Covenant attempted to terminate the parental relationship between Jimenez and the child. As previously mentioned, t ermination was ordered through a final judg ment that Jimenez did not timely appeal. So, in Epps ’ view , the trial court lost jurisdiction over that proceeding long ago , and orders entered therein after jurisdiction expired were void

. Yet, the mandamus record before us illustrates that the foregoing cause was consolidated with cause number s 2013
- 506,809 and 2013

- 507 , 082 a t the behest of Epps. In so consolidating the proceeding s , the trial court also ordered that cause number 2013
- 506,729 be the controlling number. Cause n umber 2013
- 507, 082 involved Epps ’ effort to be 1) declared father of the child and 2) assigned managing conservator over his offspring. Continuing jurisdiction over that dispute exists. In re Chester , 398 S.W.3d 795, 802 (Tex. App.

— San Antonio 2011, orig. proceeding) (stating that a trial court has continuing jurisdiction over orders designating conservatorship) . So, given the consolidation order, the trial court does indeed have jurisdiction to issue ord ers under cause number 2013

- 506, 729. Next, Epps contends that Jimenez lacked standing to obtain any type of conservatorship over the child because her rights were terminated via a final judgment. Yet, she petitio ned for a bill of review to set aside that final judgme nt. The effect of the order granting that petition was to nullify the judgment or order terminating her parental rights. Caldwell v. Barnes , 154 S.W.3d 93, 96

- 98 (Tex. 2004) (stating that an order granting a bill of review nullifies the judgment being a ttacked and leaves the parties to4

adjudicate the original controversy). So, because her parental rights to the child have not been terminated, it cannot be said that she lacks standing to seek and obtain conservatorship over the child because her parental rights were finally terminated. Finally, Epps contends that the trial court abused its discretion in ordering that he pay Jimenez “$2,500 . . . if you do appeal that other matter.” 2 That allegedly chilled his right to seek relief through a petition for w rit of mandamus. Yet, a writ of mandamus is largely governed by equitable principles

. In re Prudential Ins. Co. of America , 148 S.W.3d 124, 138 (Tex. 2004) . An appeal is a legal remedy. In re Pannell , 283 S.W.3d 31, 35 (Tex. App.

— Fort Worth 2009, orig. proceeding) . One is not the other. O rdering he pay attorney’s fees should an “appeal” of some order be undertaken is not ordering that he pay Jimenez’ attorney’s fees if he petitions for a writ of mandamus. So, it does not logically follow that a d irective to pay fees if a party eventually “ appeals ” an issue when the issues becomes appealable chills the right to seek interim relief through a writ of mandamus. Additionally, a tri al court has broad discretion to award reasonable attorney's fees in mat ters involving the parent

- child relationship (like that here)

. London v. London , 192 S.W.3d 6, 19 (Tex. App.

— Housto n [14th Dist.] 2005, pet. denied ) ; T EX
. F AM
. C ODE A NN
. § 106.002 (a)(1) ( West 2014 ) (stating that in a suit under title 5 , “ the court may render judgment for reasonable attorney's fees and expenses and order the judgment and post
- judgment interest to be paid directly to an attorney ” )

. And, though the decision to award fees to a prevailing party under that statute is discretionary, In the Interest of Pecht, 874 S.W.2d 797, 803 (Tex. App

— T exarkana 1994, no writ) , fees may also be awarded an unsuccessful pa rty , depending upon the circums tances. See London v.

2 What the “other matter” means was not defined. Nor do we have before us a written order signed by the trial court purporting to explain what was meant.5

London , 192 S.W.3d at 19 (stating that “ [ a ] ttorney's fees rendered in the prosecution or defense of a suit affecting the parent

- child relationship may be awarded as necessaries to the child, even where the fees are incurred by the un successful party” if warranted by good cause); accord Nichol v. Nichol , No. 07

- 12
- 00035
- CV, 2014 Tex. App. LEXIS 492, at *13

- 14 (Tex. App.

— Amarillo 2014, no pet.) (stating that attorney’s fees cannot be awarded an unsuccessful party absent good cause )

. So, to the extent that Epps suggests that the trial court abused its discretion because it may not award appellate fees irrespective of whether Jimenez prevailed, he is mist aken. More importantly, he says nothing about why good cause would not support the assessment here. Finally, by our rejection of his contentions regarding jurisdiction and standing, Jimenez prevailed in this mandamus. Assuming arguendo that the trial cou rt’s award of fees if Epps appealed those decisions encompassed review via a writ of mandamus, we cannot conclude that the trial court abused its discretion. Again, it may award reasonable fees to a prevailing party. Accordingly, we deny Epps’ petition for writ of mandamus.

Brian Quinn Chief Justice