in Re Barber Family Corporation

                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                   No. 06-22-00087-CV




       IN RE BARBER FAMILY CORPORATION




              Original Mandamus Proceeding




      Before Morriss, C.J., Stevens and van Cleef, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                 MEMORANDUM OPINION

       Neotis Robinson sought to collect a judgment against the Barber Family Corporation (the

Corporation) using a writ of execution. After the trial court denied the Corporation’s motion to

quash the writ of execution, the Corporation filed this petition for a writ of mandamus asking this

Court to declare void the Robinson judgment. Because the Corporation has failed to show itself

entitled to mandamus relief, we deny the petition.

       To better understand the current situation, a bit of backstory is in order. On April 25,

2007, the Corporation filed a breach of contract action against Robinson. Robinson failed to file

an answer, and on December 14, 2007, the County Court at Law of Cass County entered an

interlocutory judgment finding Robinson in default but ordering “that the tr[ia]l of this cause be .

. . postponed, to be set for tr[ia]l in the ordinary course of proceedings, at which time . . . a final

judgment shall be rendered, and this interlocutory judgment shall be finalized in accord with that

judgment.” On January 9, 2008, Robinson filed an answer and counterclaim for trespass to

realty, seeking compensation for damages to his real property.           Almost one year later, on

December 8, 2008, the trial court entered a judgment against Robinson as to the Corporation’s

claims (December 2008 Judgment). The December 2008 Judgment found Robinson in default

and ordered him to pay the Corporation $40,000.00 in damages and $2,500.00 in attorney fees,

but it did not reference or rule on Robinson’s counterclaim.




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        On February 8, 2016, a trial was held on Robinson’s counterclaim against the

Corporation, but the Corporation failed to appear. On February 17, 2016, the trial court entered a

final judgment in favor of Robinson on his counterclaim against the Corporation, awarding him a

total of $64,767.00 in damages (February 2016 Judgment). In 2022, a writ of execution was

issued as to the February 2016 Judgment, and after a hearing in July, the trial court denied the

Corporation’s motion to quash the writ. The Corporation then filed this petition for a writ of

mandamus asking this Court to declare the trial court’s February 2016 Judgment void. We deny

the petition.

        To be entitled to mandamus relief, the relator must show (1) that he has no adequate

remedy at law and (2) that the action he seeks to compel is ministerial, not one involving a

discretionary or judicial decision. State ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals at

Texarkana, 

 (Tex. Crim. App. 2007) (orig. proceeding). The relator is

obligated to provide “this Court with a sufficient record to establish [his] right to mandamus

relief.” Walker v. Packer, 

 (Tex. 1992) (orig. proceeding); see In re

Pilgrim’s Pride Corp., 

, 198–99 (Tex. App.—

, orig.

proceeding); see also TEX. R. APP. P. 52.3. Before mandamus may issue, the relator must show

that the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or

refused to act.    In re Villarreal, 

 (Tex. App.—Amarillo 2003, orig.

proceeding); see also In re Blakeney, 

 (Tex. App.—Texarkana 2008, orig.

proceeding).



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       “[A] litigant may attack a void judgment [either] directly or collaterally.” PNS Stores,

Inc. v. Rivera, 

 (Tex. 2012); In re E.R., 

 (Tex. 2012).

“A direct attack—such as an appeal, a motion for new trial, or a bill of review—attempts to

correct, amend, modify or vacate a judgment and must be brought within a definite time period

after the judgment’s rendition.” PNS Stores, Inc., 

. “A collateral attack seeks

to avoid the binding effect of a judgment . . . to obtain specific relief that the judgment currently

impedes.” 

. While “a void judgment may be collaterally attacked” at any time, “[a]

judgment is void only when it is apparent that the court rendering judgment ‘had no jurisdiction

of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the

particular judgment, or no capacity to act.’” Browning v. Prostok, 

 (Tex.

2005) (quoting Browning v. Placke, 

 (Tex. 1985) (per curiam) (orig.

proceeding)).

       The Corporation contends that the trial court committed a clear abuse of discretion by

denying its motion to quash because the February 2016 Judgment, upon which the writ of

execution was based, was void. Essentially, the motion to quash was the vehicle by which the

Corporation sought to collaterally attack the validity of the February 2016 Judgment. Here, the

Corporation raises several arguments based on the premise that the February 2016 Judgment is

void because the December 2008 Judgment was a final judgment.

       Although Robinson’s answer and counterclaim were filed nine months after the petition

was filed, they were filed before the Corporation could obtain a final judgment on its claims



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against Robinson. “A default judgment may not be granted when the defendant has an answer

on file, even if the answer was filed late.” Thomas v. Gelber Grp., 

 (Tex.

App.—Houston [14th Dist.] 1995, no writ); see TEX. R. CIV. P. 239; Davis v. Jefferies, 

 (Tex. 1989) (per curiam) (orig. proceeding).

       A judgment is final if it disposes of all pending parties and claims in the record. Jack B.

Anglin Co. v. Tipps, 

 (Tex. 1992) (orig. proceeding); see Clark v. Pimienta,

 (Tex. 2001) (per curiam). A final judgment is not required to be in any

particular form, and we therefore must determine whether a decree is a final judgment from its

language and the record in the case. Lehmann v. Har-Con Corp., 

 (Tex.

2001), overruled on other grounds by Indus. Specialists, LLC v. Blanchard Ref. Co. LLC, 

, 14 (Tex. 2022). “[W]hen there has not been a conventional trial on the merits, an

order or judgment is not final for purposes of appeal unless it actually disposes of every pending

claim and party or unless it clearly and unequivocally states that it finally disposes of all claims

and all parties.” Id. at 205. “[I]f the record reveals the existence of parties or claims not

mentioned in the order, the order is not final.” Id. at 206.

       Here, the December 2008 Judgment purportedly resolved the Corporation’s claims

against Robinson but did not reference, resolve, or sever Robinson’s counterclaim against the

Corporation or purport to dispose of all claims and all parties. “A[ judgment] that adjudicates

only the plaintiff’s claims against the defendant does not adjudicate a counterclaim.” Id. at 205.




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Because the December 2008 Judgment failed to adjudicate the counterclaim, it was not a final

judgment, as it did not resolve all claims against all parties. See id.

       Since the December 2008 Judgment was not a final judgment, the Corporation’s

argument attacking the validity of the February 2016 Judgment fails. Since there is no showing

of a clear abuse of discretion, the Corporation has failed to show itself entitled to mandamus

relief. We deny the petition.




                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        December 21, 2022
Date Decided:          December 22, 2022




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