in Re: Kerri Sue Culver

• Court: Court of Appeals of Texas
• Decided: March 29, 2011
• Docket: 06-11-00028-CV
• Status: Published

Opinion

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00028-CV

                                                                        IN RE:

KERRI SUE CULVER

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            The most recent version of the protective order against Kerri Sue Culver was issued October 28, 2010, by the 402nd Judicial District Court in Wood County and was titled a “Nunc Pro Tunc Protective Order.”  It found that Kerri committed family violence against her husband, Billy Ray Culver, and ordered Kerri to refrain from eight different actions, selected by checking boxes in the preprinted form.  Two earlier versions of the protective order were dated September 28, 2010 (the original protective order), and September 29, 2010 (also titled “Nunc Pro Tunc Protective Order”).^[1]  By her petition for writ of mandamus, Kerri challenges both so-called “nunc pro tunc” protective orders.  Because the two challenged orders are not void, but were issued while the trial court retained plenary power to modify the original order, and because Kerri has a remedy by appeal, we deny her petition for writ of mandamus.

            Mandamus is an extraordinary remedy that issues only to correct a clear abuse of discretion or violation of a duty imposed by law when no other adequate remedy by law is available.  State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig. proceeding).  Due to the nature of this remedy, it is Kerri’s burden to properly request and show entitlement to the mandamus relief.  Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”).

            Kerri asserts that the trial court made substantive changes in the form of a judgment nunc pro tunc without notice and a hearing.  Due to this alleged lack of due process, Kerri argues that the judgments are void.  She argues that, because the judgments nunc pro tunc are void, “the relator need not show it did not have an adequate appellate remedy, and mandamus relief is appropriate.”  See In re Sw. Bell Tele. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).  Kerri’s petition for writ of mandamus is based on a mistaken premise.^[2]

            A true nunc pro tunc judgment is one correcting clerical errors after the trial court has lost plenary power.  Ferguson v. Naylor, 860 S.W.2d 123, 128–29 (Tex. App.—Amarillo 1993, writ denied) (citing Ortiz v. O.J. Beck & Sons, Inc., 611 S.W.2d 860, 864 (Tex. App.—Corpus Christi 1980, no writ)).  Although the trial court titled its two later judgments “nunc pro tunc” protective orders, they were modified judgments.  See Owens v. Owens, No. 06-08-00040-CV, 2008 WL 2795867, at *1 (Tex. App.—Texarkana July 18, 2008, no pet.) (mem. op.).  When the trial court entered its September 28, 2010, judgment, it retained plenary power to vacate, set aside, modify, or amend the judgment for thirty days after the date of its rendition.  Tex. R. Civ. P. 329b(d).  Also, a motion for new trial was filed October 1, 2010, and was overruled by operation of law.  Thus, the court’s September 29, 2010, and October 28, 2010, judgments were entered while the court retained plenary power.  Tex. R. Civ. P. 329b(e).  If a trial court signs a corrected judgment while it still has plenary power, it is a modified judgment, not a judgment nunc pro tunc, regardless of the document’s label as a judgment nunc pro tunc.  Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978); Ferguson, 860 S.W.2d at 128–29.

            Because the October 28, 2010, modified judgment replaces the prior judgments, we conclude that Kerri’s complaints from this judgment can be adequately addressed in her direct appeal currently pending.^[3]  Owens, 2008 WL 2795867, at *1.  Accordingly, we deny Kerri’s petition for writ of mandamus.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          March 28, 2011

Date Decided:             March 29, 2011

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^[1]In each version of the protective order, Kerri was ordered to refrain from taking any action designated in the order by a check mark, followed by a list of potential orders designed to restrict Kerri from harassing, threatening, and stalking Billy and two named adult family members.  To the right of each prohibited act was a box, which the trial court was to check.  The boxes were left unchecked in the September 28, 2010, judgment.  The trial court entered two subsequent judgments, the first September 29, 2010, and the other October 28, 2010, each of which was titled a “nunc pro tunc” order and contained certain checked boxes forbidding certain actions by Kerri. 

^[2]Kerri’s petition also reveals two other mistaken premises.  Kerri complains that the trial court’s first judgment nunc pro tunc fails to contain the judge’s signature.  Our review of the record demonstrates this argument is without merit.  Kerri also complains that the trial judge had no authority to sign the second judgment nunc pro tunc without resolution of her motion seeking to recuse the trial court.  Again, review of the record demonstrates Kerri’s motion seeking recusal of Judge G. Timothy Boswell was properly denied by Judge John Ovard, the regional presiding judge of the First Administrative Judicial Region of Texas. 

^[3]Kerri has already filed an appeal with this Court, cause number 06-10-00112-CV.  The appeal is pending, and no briefs have yet been filed.

e both testified the leash they brought over belonged to Lucy.  Keahey said it would be a bad idea to take the leash of an unfamiliar dog. 

            Viewing the evidence in a light most favorable to the Ruttys, we conclude that more than a scintilla of evidence existed to support a rational jury’s decision that Keahey was negligent.  According to Keahey’s testimony, he believed Lucky was an aggressive dog that would bite.^[4]  Nevertheless, instead of calling the Ruttys, he attempted to guide both dogs back to their yard.  Keahey’s description of the leash he was holding matched the description of Lucky’s leash, not Lucy’s.  The jury heard Keahey testify that a reasonably prudent person would not handle the leash of an unfamiliar dog.  Warren testified Keahey “might have gotten tangled up in the leash and was trying to get it off of the dog, because he was tangled up in the leash.”  We find the evidence legally sufficient to support the judgment. 

            We now review Keahey’s challenge to the factual sufficiency of the evidence.  Keahey told the jury he knew Lucky was aggressive.  Even believing his testimony that he was holding Lucy’s leash, the jury could have decided Keahey was negligent in failing to call Elisa to remove the dogs from his driveway.  By attempting to guide an aggressive dog, the jury could have found Keahey negligent in taking the matter into his own hands.  Given Keahey’s own testimony, we cannot say that the jury’s finding was so against the great weight and preponderance of the evidence that it was clearly wrong and unjust.  Francis, 46 S.W.3d at 242.  We find the evidence factually sufficient to support the judgment. 

            Because we find the evidence both legally and factually sufficient to support the jury’s finding of contributory negligence, we overrule Keahey’s points of error. 

III.       Conclusion

            We affirm the trial court’s judgment.

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          April 20, 2011

Date Decided:             April 21, 2011

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^[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

^[2]The main arguments in Keahey’s brief complain of the submission of the contributory negligence question to the jury.  Because there was no objection to the court’s charge, we decline to address this issue.  See Tex. R. App. P. 33.1.

^[3]The seventy-five-year old Keahey had issues with vision. 

^[4]This assertion was hotly contested, as the Ruttys testified the dog was not aggressive and would not bite.