in Re Villa of Harlingen D/B/A Villa Quilt of Harlingen ( 2012 )

NUMBER 13-12-00570-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE VILLA OF HARLINGEN D/B/A VILLA QUILT OF HARLINGEN
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Chief Justice Valdez
By petition for writ of mandamus, relator, Villa of Harlingen d/b/a Villa Quilt of
Harlingen (“Villa”), seeks to set aside a judgment nunc pro tunc signed after the
expiration of the trial court’s plenary power. We conditionally grant the writ of
mandamus.
I. BACKGROUND
Roberto Ruiz Jr. brought suit against various defendants for personal injuries
sustained as a result of a fall from an allegedly defective shower chair. He thereafter
settled his claims with some of those defendants. Accordingly, on June 14, 2012, the
trial court signed an “Agreed Take Nothing Judgment” providing that:
BE IT REMEMBERED, that on this day came on to be heard the
above-entitled and numbered case wherein ROBERT RUIZ, JR., is the
Plaintiff, and APEX MEDICAL CORPORATION D/B/A CAREX HEALTH
BRANDS (erroneously referred to as CAREX HEALTHBRANDS D/B/A
APEX-CAREX HEALTHCARE PRODUCTS, INC.), MACPHERSONS,
LTD. D/B/A MACPHERSONS PHARMACY AND MEDICAL EQUIPMENT,
MORRIS & DICKSON, CO., L.L.C.[,] AND VILLA OF HARLINGEN D/B/A
VILLA QUILT OF HARLINGEN are the Defendants; and the parties having
announced by their attorneys of record, that all matters in controversy
between the Plaintiff, ROBERT RUIZ, JR., AND Defendants, APEX
MEDICAL CORPORATION D/B/A CAREX HEALTH BRANDS
(erroneously referred to as CAREX HEALTHBRANDS D/B/A APEX-
CAREX HEALTHCARE PRODUCTS, INC.), MACPHERSONS, LTD.
D/B/A MACPHERSONS PHARMACY AND MEDICAL EQUIPMENT,
MORRIS & DICKSON, CO., L.L.C.[,] AND VILLA OF HARLINGEN D/B/A
VILLA QUILT OF HARLINGEN have been compromised and settled by
agreement and that such agreement was to the effect that the Plaintiff
take nothing against these Defendants.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by
the Court that the Plaintiff take nothing by his suit, and that Defendants
APEX MEDICAL CORPORATION D/B/A CAREX HEALTH BRANDS
(erroneously referred to as CAREX HEALTHBRANDS D/B/A APEX-
CAREX HEALTHCARE PRODUCTS, INC.), MACPHERSONS, LTD.
D/B/A MACPHERSONS PHARMACY AND MEDICAL EQUIPMENT,
MORRIS & DICKSON, CO., L.L.C.[,] AND VILLA OF HARLINGEN D/B/A
VILLA QUILT OF HARLINGEN be in all things discharged and go hence
without day.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all
costs of court incurred herein are taxed against the party incurring same.
All other relief not expressly granted herein is denied.
Thereafter, on August 27, 2012, Ruiz filed a motion for judgment nunc pro tunc
alleging that there was a clerical error in the judgment. According to the motion, “the
judgment indicates that it was signed by all parties and agreed to; however, Plaintiff
struck through several lines of the judgment,” and the judgment that was entered “does
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not reflect the lines that were stricken and initialed by Plaintiff’s attorney.” Ruiz alleged
that the lines that were struck were those including “Villa of Harlingen d/b/a Villa Quilt of
Harlingen,” and thus, “there was a mistake and an additional party’s name was left in
the judgment which should not have been there because there was no settlement with
that party.”1 By response, Villa contended that the alleged mistake was not subject to
correction and the trial court lacked jurisdiction to modify the agreed judgment. The trial
court granted Ruiz’s motion by written order signed on September 6, 2012, and, that
same day, signed a nunc pro tunc judgment omitting “Villa of Harlingen d/b/a Villa Quilt
of Harlingen.”
This original proceeding ensued. By one issue, Villa contends that the alleged
error was judicial rather than clerical in nature and accordingly, the trial court lacked
jurisdiction to enter the nunc pro tunc judgment. 2 The Court requested and received a
response to the petition for writ of mandamus from Ruiz, who also filed a motion for
sanctions against relator.
II. MANDAMUS
To be entitled to the extraordinary relief of a writ of mandamus, the relator must
show that the trial court abused its discretion and there is no adequate remedy by
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to
1
In his response to the petition for writ of mandamus, Ruiz alleged that he “did not realize the
wrong Judgment had been entered until the end of August when [he] appeared for pre-trial and saw that
the case was not on docket call.”
2
Relator filed a “Motion for Leave to File Petition for Writ of Mandamus” with his petition.
Relator's motion for leave to file his petition for writ of mandamus is dismissed as moot. The Texas Rules
of Appellate Procedure no longer require the relator to file a motion for leave to file an original proceeding.
See generally TEX. R. APP. P. 52 & cmt.
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correctly analyze or apply the law. In re Cerberus Capital Mgmt., LP, 164 S.W.3d 379,
382 (Tex. 2005) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding). Generally, mandamus is appropriate to set aside an
order that is granted after the court's plenary power expires and is therefore void. In re
Daredia, 317 S.W.3d 247, 250 (Tex. 2010) (orig. proceeding); In re Dickason, 987
S.W.2d 570, 571 (Tex. 1998). Under these circumstances, a relator does not have an
adequate remedy by appeal and is entitled to mandamus relief. In re Daredia, 317
S.W.3d at 250; In re Dickason, 987 S.W.2d at 571.
III. ANALYSIS
Unless a motion has been filed that extends the trial court’s plenary power, the
trial court has plenary power for 30 days after a judgment is signed to grant a new trial
or to vacate, modify, correct, or reform its judgment. TEX. R. CIV. P. 329b(d). Once a
trial court's plenary power expires, it cannot set its judgment aside except by a bill of
review for sufficient cause. Id. R. 329b(f). By exception to this general rule, the trial
court can correct clerical errors by judgment nunc pro tunc even after it loses plenary
power. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986); see TEX. R. CIV. P. 316,
329b(f). A clerical error results when there is a discrepancy between the entry of
judgment in the official record and the judgment as it was actually rendered. Universal
Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29–30 (Tex. 1971). A clerical error
is not a substantive change in the judgment. Dickens v. Willis, 957 S.W.2d 657, 659
(Tex. App.—Austin 1997, no pet.).
In contrast, if a trial court attempts to correct a judicial error by signing a
judgment nunc pro tunc after the expiration of its plenary power, the judgment is void.
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Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973). A judicial error is an error in
rendering the judgment. In re Daredia, 317 S.W.3d at 249; Escobar, 711 S.W.2d at
231. It arises from a mistake of law or fact that requires judicial reasoning or
determination to correct. LaGoye v. Victoria Wood Condo. Ass'n, 112 S.W.3d 777, 783
(Tex. App.—Houston [14th Dist.] 2003, no pet.). "[I]f the judgment entered is the same
as the judgment rendered, regardless of whether the rendition was incorrect, a trial
court has no nunc pro tunc power to correct or modify the entered judgment after its
plenary jurisdiction expires." Hernandez v. Lopez, 288 S.W.3d 180, 187 (Tex. App.—
Houston [1st Dist.] 2009, no pet.) (op. on rehearing). Whether an error in a judgment is
clerical or judicial is a question of law. Escobar, 711 S.W.2d at 232.
In the instant case, the judgment nunc pro tunc was entered after the expiration
of the trial court’s plenary power, and accordingly, we must determine whether the
alleged error in the original judgment was clerical or judicial in nature. We conclude that
the inclusion of Villa in the agreed judgment was a judicial error. The law is clear that a
drafting error by a party's attorney does not constitute a "clerical error." In re Fuselier,
56 S.W.3d 265, 268 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding); see also
Mathes v. Kelton, 569 S.W.2d 876, 877 (Tex. 1978) (illustrating, as an example of
judicial error not correctable by judgment nunc pro tunc, the judicial determination that
the terms of a rendered judgment should be changed); LaGoye, 112 S.W.3d at 784
(holding that the correction of a judgment to add a party was judicial error not subject to
correction by nunc pro tunc judgment); In re Rollins Leasing, Inc., 987 S.W.2d 633, 637
(Tex. App.—Houston [14th Dist.] 1999) (orig. proceeding) (holding that the correction of
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a judgment to reflect dismissal of only one defendant rather than two was judicial error
not correctable by judgment nunc pro tunc).
“[P]rovisions alleged to have been inserted [in the judgment] by mistake of the
attorney nevertheless become a part of the court’s judgment and therefore are judicial
errors when thus rendered in writing by the court.” In re Daredia, 317 S.W.3d at 249
(quoting Dikeman, 490 S.W.2d at 185–86). When someone other than the trial court
prepares a proposed written order or judgment that reflects a mistake, and the trial
court, without having already rendered judgment, signs the proposed order or judgment,
the mistake becomes part of the court's judgment as actually rendered and it is
therefore a judicial error rather than a clerical error. See id.
We conclude that the error in this case, being judicial in nature, could not be
corrected by nunc pro tunc judgment after the expiration of the trial court’s plenary
jurisdiction. Because the trial court attempted to correct a judicial error by signing a
judgment nunc pro tunc after its plenary power expired, the judgment nunc pro tunc is
void. See Dikeman, 490 S.W.2d at 186.
IV. MOTION FOR SANCTIONS
As mentioned previously, Ruiz filed a motion for sanctions against relator on
grounds that relator omitted portions of the reporter’s record, “grossly misstated and
omitted material facts and evidence,” and brought the petition “solely for delay.” Relator
further asserts that the petition is groundless.
We first address Ruiz’s complaint that relator failed to file the reporter’s record for
the hearing on the motion for nunc pro tunc judgment. The appellate rules require
relator to file “a properly authenticated transcript of any relevant testimony from any
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underlying proceeding, including any exhibits offered in evidence, or a statement that no
testimony was adduced in connection with the matter complained.” TEX. R. APP. P.
52.7(a)(2). Relator failed to file a transcript or a statement that no testimony was
adduced with his record for this original proceeding. However, under the facts and law
at issue in this case, relator’s failure does not preclude mandamus relief. See, e.g., In
re 24R, Inc., 324 S.W.3d 564, 568 (Tex. 2010) (orig. proceeding) (rejecting real party’s
contention that mandamus should be denied where relators failed to file transcript or
statement because the appellate rules require relators to file only "relevant" transcripts
of testimony). In the instant case, Ruiz makes no argument from which we could
discern that the transcript is relevant to our determination in this matter. Moreover, Ruiz
does not contend that the hearing was evidentiary in nature. See, e.g., Barton v.
Gillespie, 178 S.W.3d 121, 127 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (allowing
evidence at nunc pro tunc hearing in the form of oral testimony, written documents,
previous judgments, docket entries, or the trial judge's personal recollection). Finally,
we note that Ruiz has not supplemented the record with the transcript. See TEX. R.
APP. P. 52.7(b) (allowing “relator or any other party to the proceeding to file additional
materials for inclusion in the record”).
Ruiz further contends that relator failed to inform this Court in its petition for writ
of mandamus that it had not settled Ruiz’s claims against it, and the petition thus
“grossly misstated and omitted material facts.” Upon review, however, relator’s petition
did not address settlement issues between the parties, and the petition for writ of
mandamus accurately represented the factual underpinnings of relator’s claim.
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Finally, given our disposition of this petition, Ruiz’s allegations that the petition for
writ of mandamus is groundless or was brought solely for purposes of delay are without
merit. We deny the motion for sanctions.
V. CONCLUSION
We conclude that the trial court abused its discretion in setting aside a judgment
after its plenary power expired. See id. Relator has no adequate remedy by law. See
In re Dickason, 987 S.W.2d at 571. Accordingly, the Court, having examined and fully
considered the petition for writ of mandamus and the response thereto, is of the opinion
that the petition for writ of mandamus should be and is conditionally granted.
IT IS SO ORDERED.
____________________
ROGELIO VALDEZ
CHIEF JUSTICE
Delivered and filed the
2nd day of November, 2012.
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