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

SUPREME COURT CASES

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State: Texas

Court: Texas Northern District Court

Docket No: 04-01-00605-CV

Case Date: 11/21/2001

Plaintiff: RICHARD AND DEBORA RALSTON

Defendant: LIZA PRATT--Appeal from 94th District Court of Nueces County

Preview:In re Carl Pipoly--Appeal from 131st Judicial District
Court of Bexar County
heading for mandamus
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
Honorable Johnny Gabriel, Judge Presiding (1)
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
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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
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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).
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