In re HELENA CHEMICAL COMPANY, 134 S.W.3d 378

OPINION BILL VANCE, Justice. Relator Helena Chemical Company (“Helena”) petitions this Court to issue a writ of mandamus directing Respondent, the Honorable John Jackson, Judge of the 13th Judicial District Court of Navarro County, Texas, to vacate his “Interlocutory

Summary Judgment” of May 5, 2003. Helena argues that the underlying case was finally resolved by a

summary judgment order of January 10, 2003, and therefore, the May 5 order is void because the court’s plenary power had expired. The Real Parties in Interest, Michael Crawford and Michael Crawford Farms (“Crawford”), disagree. Crawford argues that the court’s January 16, 2003, letter to the parties constituted an order that vacated the court’s January 10th

summary judgment. Therefore, Crawford contends, the May 5th judgment is not void because the court retained jurisdiction over a pending case. The legislature has prescribed jurisdiction of a court of appeals to issue writs of mandamus (1) to enforce the court’s jurisdiction, and (2) against judges of district and county courts in the district of the particular court of appeals. Tex. Gov’t Code Ann. § 22.221 (Vernon Supp. 2003). A writ of mandamus will issue “only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.” Johnson v.

Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding); see also Walker v. Packer, 827 S.W.2d 833 (Tex.1992) (orig. proceeding). The underlying case was a suit by Helena against Crawford on a sworn account. In its original answer, Crawford' alleged several defenses. On September 10, 2002, Helena filed its motion for

summary'judgment. On October 23, 2002, after Crawford responded to Helena’s motion for

summary judgment, Judge Jackson sent the parties a letter suggesting that the parties mediate their disputes. In this letter, Judge Jackson noted that there “are probably no fact issues and the Motion for

Summary Judgment should be granted.” He wrote: “If the parties are not in a position to enter into a good faith mediation, I will rule on the Motion for

Summary Judgment.” Because of this letter, the parties entered mediation. On January 10, 2003, after Helena’s attorneys informed Judge Jackson that the mediation was unsuccessful, Judge Jackson signed a

summary judgment in favor of Helena disposing of all issues. But on January 14, 2003, Crawford’s attorney wrote to Judge Jackson informing him that “the parties [were] still trying to negotiate a settlement at [that] time.” Two days later, Judge Jackson wrote to the parties’ attorneys: Gentlemen, My records reflect that I signed a

summary judgment in this case when it appeared that attempted settlements were unsuccessful. Because it now appears that negotiations are continuing, I will withdraw my ruling and the

summary judgment previously signed. I will reconsider the same on February 1, 2003. Please attempt to resolve your negotiations before that time. /s/ John H. Jackson, Judge 13th Judicial District (Emphasis added). On January 27, 2003, Crawford filed an Amended Answer and Counterclaim, which counterclaimed for negligent misrepresentation, fraud, violations of the Deceptive Trade Practices Act, and usury. On May 5, 2003, Judge Jackson signed an “Interlocutory

Summary Judgment” in favor of Helena, but without prejudice to Crawford’s counterclaims, which noted “By letter of January 16, 2003, the Court withdrew the Final Judgment.” To resolve this mandamus we must ascertain the effect of the January 16th letter, ie., did the letter vacate the January 10th

summary judgment effective January 16, or did Judge Jackson’s words “will withdraw” convey an intent to vacate it in the future? Helena argues alternatively that “will withdraw” conveyed an intent to do something in the future, which was never done, and that even if Judge Jackson intended to vacate his judgment effective January 16, 2003, he had no discretion to do so. For simplicity, we address Helena’s second argument first, and we find Helena’s reliance on Rule 320 misplaced. Tex.R. Civ. P. 320.

Rule 329b of the Rules of Civil Procedure provides: “The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.” Id. 329b(d). Helena cites Rule 320, which deals with the trial court’s granting of a new trial for good cause on a party’s motion or sua sponte. Id. 320 (emphasis added). But the Notes and Comments indicate changes by amendments in 1955 and 1984 to avoid redundancy and to maintain consistency with Rule 329b.

Therefore, we do not believe that Rule 320 governs a judge’s withdrawal or vacating of a

summary judgment to the exclusion of 329b. See Chavez v. Housing Auth., 897 S. W.2d 523, 526 n. 1 (Tex.App.-El Paso 1995, writ denied) (“It is logical to note that based upon the definition of ‘trial’ as contained in Linwood [v. NCNB Texas, 885 S.W.2d 102 (Tex.1994) ] and Besing [v. Moffitt, 882 S.W.2d 79 (Tex. App.-Amarillo 1994, no writ) ], a

summary judgment proceeding has not been ‘tried’ for purposes of a motion for new trial, either.”). Moreover, we disagree with Helena’s principal argument, regarding Judge Jackson’s use of the words “will withdraw,” and we find that the January 16th order vacated the order of January 10. The Texas Supreme Court has said that we are to look to the record to ascertain the judge’s intent when construing a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195, 205-06 (Tex.2001).

Similarly, we look to the record to ascertain the judge’s intent when construing an order issued within the court’s period of plenary power. See Tex.R.Civ. P. 329b(d). It is clear from the record that Judge Jackson intended to defer ruling on Helena’s motion for

summary judgment until the parties had mediated their dispute. The specific language in the January 16 order — though imperfectly worded — conveys an intent to vacate the order on that day. Moreover, Judge Jackson’s May 5, 2003, order notes that he had previously withdrawn the January 10th

summary judgment. Accordingly, considering the order in light of the entire record, we deny the petition. Chief Justice GRAY dissenting.