In Re Alicia Stubblefield, Relator--Appeal from 150th Judicial District Court of Bexar County

IN RE Alicia STUBBLEFIELD
Original Mandamus Proceeding
Court of Appeals No. 04-98-00727-CV
Trial Court No. 97-CI-04505
From the 150th Judicial District Court, Bexar County, Texas
Honorable Janet Littlejohn, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 9, 1998

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

In this mandamus proceeding, relator, Alicia Stubblefield, requests this court to direct the trial court to vacate its order granting a "Prospective Special Appearance" for the real party in interest, John Stubblefield. Finding that the trial court lacked plenary power to enter such order, we conditionally grant the requested writ.

Procedural History

This original proceeding arises from post-judgment activity concerning a default divorce decree. In March 1997, Alicia Stubblefield (hereinafter "Alicia") filed for divorce in Bexar County to dissolve her marriage from John Stubblefield (hereinafter "John"). John, a member of the United States military, was residing in Arizona at the time Alicia filed suit. On September 5, 1997, a hearing on the merits of the divorce action was conducted before Judge Janet Littlejohn. Although properly served with citation, John failed to appear. The record reflects that John was served citation by private process in April 1997. The return of service was dated April 23, 1997, but it was not file stamped until the date of the hearing due to confusion in the district clerk's office. Nonetheless, the trial court allowed the hearing to proceed with the understanding that a final divorce decree would not be signed until the expiration of the 10-day waiting period mandated by Rule 107 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 107 (requiring citation with proof of service to be on file ten days before entry of judgment). On October 10, 1997, Judge Peter Michael Curry signed a default divorce decree dissolving Alicia and John's marriage and dividing their marital property. The record contains both a certificate of last known address for John and a copy of the notice of judgment forwarded to him.

An appeal from the default judgment was not taken. In January 1998, Alicia filed a motion for judgment nunc pro tunc to correct the misspelling of John's name which appeared as Jon throughout the original decree. On January 5, 1998, Judge Curry signed an order entering a judgment nunc pro tunc correcting the misspelling. On January 15, 1998, Judge Curry signed a decree designated as the "Final Decree of Divorce - Nunc Pro Tunc."

In April 1998, John filed a special appearance motion pursuant to Rule 120a of the Texas Rules of Civil Procedure. It was then discovered that substantive changes had been inadvertently made in the January 15, 1998 judgment. A "Second Amended Final Decree of Divorce - Nunc Pro Tunc," deleting the substantive additions, was then entered. On April 22, 1998, Judge Littlejohn conducted a hearing on John's special appearance motion at the conclusion of which she orally granted the motion. At the outset of the hearing, Alicia objected to the proceeding on the basis that the trial court was acting outside its plenary power. An order reflecting Judge Littlejohn's ruling was signed on June 19, 1998.

Trial Court's Plenary Power After Judgment Nunc Pro Tunc

Alicia argues a writ of mandamus should issue because the trial court's order, which is currently preventing her from collecting military benefits awarded to her in the divorce decree, was signed after the expiration of the trial court's plenary power and is, therefore, void. We agree.

Mandamus is an extraordinary remedy that is available only in limited circumstances. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A writ of mandamus will issue to correct an order of the trial court that the court had no power to render and which was, therefore, void. Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993).

A nunc pro tunc judgment is the vehicle by which a clerical error is corrected in the judgment after the expiration of the trial court's plenary power. Ferguson v. Naylor, 860 S.W.2d 123, 126 (Tex. App.--Amarillo 1993, writ denied). The misspelling of a name is a clerical error because it is not the result of judicial reasoning, evidence, or determination. See Gonzalez v. Doctor's Hosp.--East Loop, 814 S.W.2d 536, 537 (Tex. App.--Houston [1st Dist.] 1991, no writ) (citing Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986)). Once a judgment nunc pro tunc is entered, the trial court's plenary power may be "revived," but it is revived only to a limited extent. Rule 306a(6) of the Texas Rules of Civil Procedure explains that:

When a corrected judgment has been signed after expiration of the court's plenary power pursuant to Rule 316 [Correction of Clerical Errors], 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.

Tex. R. Civ. P. 306a(6). Rule 306a(6) clearly prohibits a trial court trial from entertaining motions or challenges on matters relating to the original judgment. The nature of the complaint or relief sought controls whether the trial court has plenary power to act following the entry of a judgment nunc pro tunc. Cf. Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex. 1986) (judgment nunc pro tunc correcting acreage distribution in adverse possession case restarted appellate timetables for challenge on issue of redistribution of land); Gonzalez, 814 S.W.2d at 537 (Tex. App.--Houston [1st Dist.] 1991, no writ) (judgment nunc pro tunc correcting misspelling of party's name did not extend appellate deadlines for complaint related to original judgment); Cavalier Corp. v. Store Enterprises, Inc., 742 S.W.2d 785, 787 (Tex. App.--Dallas 1987, writ denied) (determining appellate timetables not extended following judgment nunc pro tunc correcting misspelling of plaintiff's name).(1)

Here, John's Rule 120a special appearance challenges the trial court's assertion of personal jurisdiction over him in the first instance. It is a complaint that is applicable to the original judgment, not the judgment nunc pro tunc. Thus, it is a matter over which the trial court did not have the authority to rule and is, therefore, void. See Tex. R. Civ. P. 306a(6); Graham Nat'l Bank v. Fifth Court of Appeals, 747 S.W.2d 370, 370 (Tex. 1987) (orders entered outside plenary power are void).

Accordingly, the writ of mandamus is conditionally granted. Faulkner, 851 S.W.2d at 188. We anticipate that in accordance with our opinion, Judge Littlejohn will withdraw the order granting John Stubblefield's Prospective Special Appearance dated June 19, 1998. Writ will issue upon certification to this court that he has not done so within ten days of this opinion.

CATHERINE STONE

JUSTICE

DO NOT PUBLISH

1. Texas Rule of Civil Procedure 329b(h) has language similar to that contained in Rule 306a(6). Rule 329b(h) provides:

If a judgment is modified, corrected or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed, but if a correction is made pursuant to Rule 316 [Correction of Clerical Errors] after expiration of the period of plenary power provided by this rule, no complaint shall be heard on appeal that could have been presented in an appeal from the original judgment.

Tex. R. Civ. P. 329b(h) (emphasis added).

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