Full Opinion (html_with_citations)

Opinion issued December 21, 2023




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-23-00655-CV
                            ———————————
IN RE CHARLES BOWEN AND BLACKFOOT ELECTRIC, INC., Relators



            Original Proceeding on Petition for Writ of Mandamus


                          MEMORANDUM OPINION

      Relators Charles Bowen and Blackfoot Electric, Inc. filed a Petition for Writ

of Mandamus complaining that Respondent, the Honorable Elaine H. Palmer,

abused her discretion by signing an order granting Real Parties in Interest’s Motion

for Judgment Nunc Pro Tunc and reinstating the underlying case after the trial
court’s plenary power expired.1 Relators seek an order from this court vacating the

trial court’s order.

        We conditionally grant the relief sought.

                                     Background

       Relators were involved in an automobile accident with Real Parties in Interest

Juan Nunez and Cristobal Nunez. Real Parties sued Relators for negligence in

connection with the accident on May 27, 2021.

       In a notice dated April 12, 2022, the trial court informed the parties that

because “no answer or service ha[d] been filed,” the case would be dismissed for

want of prosecution on May 27, 2022, unless by that date, an answer was filed, a

default judgment order was signed, or a verified motion and order to retain were

filed. Real Parties took no action in response to the trial court’s notice. Noting the

“failure to comply with the Notice,” Respondent signed an order dismissing the

lawsuit for want of prosecution on June 3, 2022.

       On June 22, 2022, Real Parties filed a Verified Motion to Reinstate setting

their motion for submission on July 11, 2022. Arguing “[d]efendant was served

September 22, 2021,”2 Real Parties requested reinstatement of the case to “an active


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       The underlying case is Juan Nunez and Cristobal Nunez v. Charles Lydon Bowen
       and Blackfoot Electric, Inc., Cause No. 2021-31913, pending in the 215th District
       Court of Harris County, Texas, the Honorable Elaine H. Palmer presiding.
2
       There are two named defendants in the lawsuit. The Motion to Reinstate does not
       indicate which defendant was served.
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status to allow Plaintiff additional time to file a motion for final default judgment.”

The trial court did not hold a hearing on the motion or otherwise act on the motion.

      Four months later, on October 13, 2022, Real Parties filed a Motion for

Judgment Nunc Pro Tunc (“Motion Nunc Pro Tunc”), requesting Respondent grant

their previously filed Motion to Reinstate. Real Parties attached the sworn affidavit

of their paralegal, Jessica Hughes, to their motion. Hughes stated in her affidavit

that on October 12, 2022, she “discovered that th[e] [m]otion to [r]e-instate, and its

accompanying [o]rder did not receive a ruling . . . .” Hughes stated that on July 12,

2022 and on July 18, 2022, she was “told the [o]rder was on the Judge’s desk to be

granted and signed[,]” and she “had no notice that the case had not been [r]e-

instated.” “To the extent the [trial court was] concerned about is plenary power,”

Real Parties argued that the trial court’s failure to rule on their Motion to Reinstate

“was one of a clerical nature, and this can be corrected by a Judgment Nunc Pro

Tunc.”

      Real Parties filed a notice setting their Motion Nunc Pro Tunc for submission

on October 24, 2022. On October 25, 2022, 144 days after dismissing the case for

want of prosecution, Respondent granted Real Parties’ Motion Nunc Pro Tunc,

thereby reinstating the case.

      Relators filed the instant Petition for Writ of Mandamus asserting Respondent

abused her discretion in granting Real Parties’ Motion Nunc Pro Tunc and


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reinstating the case, because the trial court’s plenary power expired on September

16, 2022. We directed Real Parties to file a response to the Petition for Writ of

Mandamus. Real Parties did not respond.

                                      Discussion

A.    Standard of Review

      Mandamus relief is appropriate when the trial court abuses its discretion, and

the relator lacks an adequate remedy by appeal. In re AutoNation, Inc.,
228 S.W.3d 663, 667
 (Tex. 2007) (orig. proceeding); In re Prudential Ins. Co of America,
148 S.W.3d 124, 135-36
 (Tex. 2004) (orig. proceeding).           A trial court abuses its

discretion when there is “a clear failure by the trial court to analyze or apply the law

correctly.” Walker v. Packer,
827 S.W.3d 833
, 840 (Tex. 1992) (orig. proceeding).

      Mandamus relief is available “when a trial court issues an order after its

plenary power has expired.” In re Brookshire Grocery Co.,
250 S.W.3d 66, 68
 (Tex.

2008) (orig. proceeding) (citing In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605
 (Tex.

2000) (orig. proceeding)).

B.    Applicable Law

      Texas Rule of Civil Procedure 165a governs dismissals for want of

prosecution and reinstatements. For motions to reinstate, Rule 165a provides that

the motion:

      shall be filed with the clerk within 30 days after the order of dismissal
      is signed or within the period provided by Rule 306a. . . . The clerk shall
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       deliver a copy of the motion to the judge, who shall set a hearing on the
       motion as soon as practicable. The court shall notify all parties or their
       attorneys of record of the date, time and place of the hearing.

TEX. R. CIV. P. 165a(3). In the event “for any reason” the motion “is not decided by

signed order within seventy-five days after the judgment is signed,” the motion

“shall be deemed overruled by operation of law.”
Id.
 When a timely motion to

reinstate is filed,

       the trial court, regardless of whether an appeal has been perfected, has
       plenary power to reinstate the case until 30 days after all such timely
       filed motions are overruled, either by a written and signed order or by
       operation of law, whichever occurs first.
Id.

       When there are clerical errors in a judgment or order, a trial court is authorized

to issue a judgment nunc pro tunc to correct the error even after its plenary power

has expired. See TEX. R. CIV. P. 316 (providing “[c]lerical mistakes in the record of

any judgment may be corrected by the judge in open court”); see also TEX. R. CIV.

P. 306a(6) (stating that “[w]hen a corrected judgment has been signed after

expiration of the court’s plenary power pursuant to Rule 316, the periods mentioned

in paragraph (1) of this rule shall run from the date of signing the corrected judgment

with respect to any complaint that would not be applicable to the original

document”).




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C.    The Motion for Judgment Nunc Pro Tunc and Motion to Reinstate

      Relators timely filed their Motion to Reinstate on June 22, 2022, 19 days after

the trial court signed its order of dismissal on June 3, 2022. See TEX. R. CIV. P.

165a(3). Respondent did not act on the Motion to Reinstate within 75 days after the

order of dismissal was signed. The motion was thus overruled by operation of law

75 days after the order of dismissal was signed or on August 17, 2022. See TEX. R.

CIV. P. 165a (3); see also In re Garcia,
94 S.W.3d 832, 834
 (Tex. App.—Corpus

Christi–Edinburg 2002) (orig. proceeding) (“The motion for reinstatement was

overruled by operation of law because it was not decided within seventy-five days

after the judgment was signed.”).

      Pursuant to Rule 165a(3), Respondent retained plenary power to reinstate the

case for an additional 30 days or until September 16, 2022. TEX. R. CIV. P. 165a (3);

see also In re Garcia,
94 S.W.3d at 834
 (“The trial court had plenary power to

reinstate the case until thirty days after any such timely filed motion was

overruled.”). Real Parties did not file their Motion Nunc Pro Tunc until October 13,

2022, well after the court’s plenary power had expired. Presumably aware of this

problem, Real Parties argued that Respondent’s failure to rule on their Motion to

Reinstate was a clerical error because Respondent had intended to rule on the Motion

to Reinstate, and thus the court had plenary power to grant their motion. Respondent




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granted Real Parties’ Motion Nunc Pro Tunc on October 25, 2022, thereby

reinstating the case.

      Respondent abused her discretion in granting Real Parties’ Motion Nunc Pro

Tunc because, when she granted the motion, the trial court’s plenary power had

expired. “[A]n order that dismisses a case for want of prosecution becomes a final

judgment upon expiration of the trial court’s plenary jurisdiction.” In re Wal-Mart

Stores, Inc.,
20 S.W.3d 734, 738
 (Tex. App.—El Paso 2000, no pet.) (orig.

proceeding). “Once [a] judgment becomes final, . . . the court’s power to correct is

limited to the correction of clerical errors only, which may be performed though a

judgment nunc pro tunc.” Parker v. Lancon,
1998 WL 104967
, at *1 (Tex. App.—

Houston [14th Dist.] Mar. 12, 1998). “A clerical error is a mistake or omission that

prevents the judgment as entered from reflecting the judgment as rendered.”
Id.

Notably, “even if the dismissal was signed by mistake, our focus must be on what

judgment the trial court actually rendered, rather than what the court may have

intended.” In re Pipoly,
2001 WL 1479268
, at *2 (Tex. App.—San Antonio Nov.

21, 2001, no pet.) (orig. proceeding).

      Applying these principles to the instant case, we hold there was no clerical

error to correct and thus Respondent’s October 25, 2022 is void. Neither the trial

court’s failure to hold a hearing on Real Parties’ Motion to Reinstate nor dismissal

of the case for want of prosecution on June 3, 2022 was a clerical error. Even if we


                                         7
agree with Real Parties that Respondent intended to grant Real Parties’ Motion to

Reinstate when she ruled on their Motion Nunc Pro Tunc, any attempted correction

of such error was a “judicial” act, requiring Respondent to have jurisdiction through

plenary power to rule on the motion. Indeed, “[i]f the [court] intends to render one

thing but actually renders another, the resultant error is judicial, not clerical.”
Id.

(quoting citation omitted).

      Because the plenary power of the trial court expired on September 16, 2022,

Respondent’s October 25, 2022 order granting Real Parties’ Motion Nunc Pro Tunc

and reinstating the case, is void. See Walker v. Harrison,
597 S.W.2d 913, 915
 (Tex.

1980) (orig. proceeding) ([“T]he time limits provided in rule 165a are mandatory

and jurisdictional and . . . orders of reinstatement entered after their expiration are

void.”); In re Valliance Bank,
422 S.W.3d 722, 729
 (Tex. App.—Fort Worth 2012,

orig. proceeding) (“Because the trial court signed the order of reinstatement after its

plenary power had expired, we hold that the order of reinstatement is void and of no

legal effect.”); In re Boglia, L.L.C.,
2011 WL 13385443
, at *1 (Tex. App.—Houston

[1st Dist.] Dec. 22, 2011, orig. proceeding) (mem. op.) (“A reinstatement order

rendered after the expiration of the trial court’s plenary power is void.”).

“Mandamus is the proper vehicle to remedy a void reinstatement order.”
Id.

      We hold Respondent abused her discretion in granting Real Parties’ Motion

Nunc Pro Tunc and reinstating the case. Mandamus is thus warranted. See Estate


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of Howley By & Through Howley v. Haberman,
878 S.W.2d 139, 140
 (Tex. 1994)

(orig. proceeding) (“When a trial court erroneously reinstates a case after the

expiration of the court’s plenary jurisdiction, mandamus will issue.”).

                                    Conclusion

      We conditionally grant mandamus relief and direct Respondent to vacate her

October 25, 2022 order reinstating the case. A writ will issue only if the trial court

does not comply. All pending motions are dismissed as moot.

                                  PER CURIAM

Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.




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