In re Carl Pipoly--Appeal from 131st Judicial District Court of Bexar County

No. 04-01-00605-CV

IN RE Carl PIPOLY

Original Mandamus Proceeding

Arising from the 131st Judicial District Court, Bexar County, Texas

Trial Court No. 98-CI-18174

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice
Paul W. Green, Justice
Karen Angelini, Justice

Delivered and Filed: November 21, 2001

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

In this original proceeding, relator, Carl Pipoly, challenges the trial court's jurisdiction to reinstate the underlying lawsuit following an order dismissing the case for want of prosecution. Because we hold the trial court's plenary power expired before the case was reinstated, we conditionally grant the petition for writ of mandamus.

Background

Pipoly and Henry Grun, Jr. are former law partners. Grun sued Pipoly for an accounting and division of the partnership assets following dissolution of the partnership. On January 9, 2001, the case was set on the dismissal docket. Following the docket call, the parties appeared before the trial court and agreed to retain the case on the docket pending arbitration of the dispute. The trial judge indicated he would retain the case and reset it on the dismissal docket in May. A few days later, the parties received notice of an order dismissing the case, signed on January 9. Pipoly and Grun agreed the dismissal was a mistake, and on February 9, 2001, Grun filed an agreed motion and order to reinstate signed by both parties. The trial court signed the agreed order granting the motion and reinstating the case that same day. The trial court denied Pipoly's subsequent plea to the jurisdiction. (2) Pipoly asserts the motion to reinstate was untimely filed, and despite the parties' agreement, the court's plenary power expired prior to the reinstatement, resulting in a void order from the trial court. (3)

Standard of Review

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Because a void order is a nullity, a party is not required to pursue all available avenues of appeal when the trial court acts without jurisdiction. National Unity Ins. Co., 926 S.W.2d 818, 822 (Tex. App.-San Antonio 1996, orig. proceeding). Therefore, mandamus is available to challenge a void order of the trial court entered after its plenary jurisdiction has expired. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973); In re Wal-Mart Stores, Inc., 20 S.W.3d 734 S.W.2d 734, 741 (Tex. App.-El Paso 2000, orig. proceeding). (4)

Discussion

(a) Order to Reinstate

The trial court's plenary power expires thirty days after a dismissal order is signed, unless a party timely files a verified motion to reinstate. Tex. R. Civ. P. 165a(3); South Main Bank v. Wittig, 909 S.W.2d 243, 244 (Tex. App.-Houston [14th Dist.] 1995, orig. proceeding). A motion to reinstate is timely if filed within thirty days of the dismissal order. Tex. R. Civ. P. 165a(3).

In this case, Grun filed his motion to reinstate thirty-one days after the judgment was signed. Because the motion was untimely, the trial court's plenary power expired and the dismissal became final. See In re Wal-Mart Stores, Inc., 20 S.W.3d at 738. The Agreed Order to Reinstate, signed after the trial court's jurisdiction expired, is void unless Grun can show the order was properly a judgment nunc pro tunc. (5)

(b) Judgment Nunc Pro Tunc

Although Grun did not expressly request the trial court to correct the order of dismissal nunc pro tunc, it is clear the motion to reinstate was based on the parties' belief that the dismissal was mistakenly entered. Grun argues in his appellate brief that the reinstatement order is, in effect, a judgment nunc pro tunc.

After its plenary power expires, a trial court may only modify a judgment to correct a clerical error. National Unity Ins. Co., 926 S.W.2d at 820 (citing Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986)).

To determine whether the error at issue is judicial or clerical, we must examine whether the original judgment properly reflected what the trial court rendered. A judicial error is an error which occurs in the rendering as opposed to the entering of a judgment. . . . We look to the judgment actually rendered, not the judgment that should or might have been rendered. . . . Thus, even if the court renders incorrectly, it cannot alter a written judgment which precisely reflects the incorrect rendition.

Id. (emphasis in original; citations omitted).

Whether an error is judicial or clerical is a question of law. Id. Before making this legal determination, though, we must determine whether the court pronounced judgment and the terms of the pronouncement. These are questions of fact. Id. A judgment nunc pro tunc can only be entered if there is clear and convincing evidence that a clerical error was made while entering a previously rendered judgment. In re Wal-Mart Stores, Inc., 20 S.W.3d at 739 n.5; Wood v. Griffin & Brand of McAllen, 671 S.W.2d 125, 129 (Tex. App.-Corpus Christi 1984, no writ).

In this case, the record reveals that the written judgment dismissing the case correctly reflects the trial court's initial ruling. The case was called on the dismissal docket at 8:30 a.m. on the day the dismissal was signed. Sometime after the docket was called, the parties appeared before the trial judge, who asked if someone else had appeared in the case earlier that morning. When the parties expressed surprise, the trial court said, "I have a note that it was dismissed. And I usually do that when someone comes up and says I want to dismiss it and there is nobody on the other side." The parties then made it clear that they wanted the case to remain on the docket pending arbitration, and the trial court agreed to reset the case

on the dismissal docket at a later date. The record is not clear whether the trial judge had already signed the dismissal order when this discussion took place.

The judgment entered correctly reflects the trial court's notation that he dismissed the case when it was called on the dismissal docket. If the written order was signed before the parties' discussion with the judge, an oral pronouncement from the judge is not sufficient to reinstate the case absent a timely, written order. In re Wal-Mart Stores, Inc., 20 S.W.3d at 740. However, 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. National Unity Ins. Co., 926 S.W.2d at 821. "If the judge intends to render one thing but actually renders another, the resultant error is judicial, not clerical." Id. (citing Escobar, 711 S.W.2d at 231); see also Love v. State Bank & Trust of San Antonio, 90 S.W.2d 819, 821 (Tex. 1936) (dismissal of case that was inadvertently included on list of cases to be dismissed was judicial error). Thus, even if a judge signs an order by mistake, the mistake is a judicial one. Love, 90 S.W.2d at 821.

In this case, there is no clear and convincing evidence that the written order of dismissal is not an accurate entry of the trial court's oral pronouncement dismissing the case. The only clear evidence is that the judge intended to reinstate the case before his plenary power expired.

Conclusion

We hold the trial court's plenary power expired before the motion to reinstate was filed and before the order reinstating the case was signed. Therefore, the agreed order of February 9, 2001 reinstating the case is void. Because the trial court abused its discretion in reinstating the case outside its plenary power, we conditionally grant the petition for writ of mandamus. We expect the district court will vacate the Agreed Order to Reinstate within twenty days. The writ will issue only if the district court refuses to do so.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Relator complains about the Honorable Andy Mireles, who presided over the dismissal docket and signed the orders at issue; however, the proper respondent is the Honorable Johnny Gabriel (permanent judge of the 131st District Court). See In re Acevedo, 956 S.W.2d 770, 770 n.1 (Tex. App.-San Antonio 1997, orig. proceeding).

2. Grun complains that Pipoly's plea to the jurisdiction was not filed until over eight months after the case was reinstated. Although we have discretion to deny mandamus relief when a party has shown a lack of diligence, we grant review in this case because it would be unfair to both the relator and the real-party-in-interest to force them to pursue a case under a void order by the trial court. See National Unity Ins. Co., 926 S.W.2d 818, 822 (Tex. App.-San Antonio 1996, orig. proceeding).

3. Grun argues we have no jurisdiction over this proceeding because Pipoly cited the wrong statute in his statement of jurisdiction. See Tex. R. App. P. 53.2(e). We have jurisdiction over mandamus proceedings pursuant to Tex. Gov. Code Ann. 22.221 (Vernon Supp. 2001). Pipoly's mistake is procedural, not jurisdictional.

4. Pipoly also challenges the trial court's refusal to dismiss the case for want of prosecution at the hearing in September 2001. Because we hold the order to reinstate is void, we need not reach this issue.

5. But see In re Wal-Mart Stores, Inc., 20 S.W.3d at 739 n.5 (citing Pedavoli v. Gen. Motors Acceptance Corp., 722 S.W.2d 39, 41 (Tex. App.-Eastland 1986, no writ)) (suggesting judgment nunc pro tunc is not available to correct failure to reinstate under Rule 165a).