in Re Villa of Harlingen D/B/A Villa Quilt of Harlingen

CourtCourt of Appeals of Texas
DecidedNovember 2, 2012
Docket13-12-00570-CV
StatusPublished

This text of in Re Villa of Harlingen D/B/A Villa Quilt of Harlingen (in Re Villa of Harlingen D/B/A Villa Quilt of Harlingen) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
in Re Villa of Harlingen D/B/A Villa Quilt of Harlingen, (Tex. Ct. App. 2012).

Opinion

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

2 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.

3 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

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Related

In Re Prudential Insurance Co. of America
148 S.W.3d 124 (Texas Supreme Court, 2004)
In Re Cerberus Capital Management, L.P.
164 S.W.3d 379 (Texas Supreme Court, 2005)
In Re Daredia
317 S.W.3d 247 (Texas Supreme Court, 2010)
In Re 24R, Inc.
324 S.W.3d 564 (Texas Supreme Court, 2010)
In Re Fuselier
56 S.W.3d 265 (Court of Appeals of Texas, 2001)
Escobar v. Escobar
711 S.W.2d 230 (Texas Supreme Court, 1986)
In Re Rollins Leasing Inc.
987 S.W.2d 633 (Court of Appeals of Texas, 1999)
In Re Dickason
987 S.W.2d 570 (Texas Supreme Court, 1998)
Universal Underwriters Insurance Co. v. Ferguson
471 S.W.2d 28 (Texas Supreme Court, 1971)
Hernandez v. Lopez
288 S.W.3d 180 (Court of Appeals of Texas, 2009)
Barton v. Gillespie
178 S.W.3d 121 (Court of Appeals of Texas, 2005)
Dikeman v. Snell
490 S.W.2d 183 (Texas Supreme Court, 1973)
LaGoye v. Victoria Wood Condominium Ass'n
112 S.W.3d 777 (Court of Appeals of Texas, 2003)
Walker v. Packer
827 S.W.2d 833 (Texas Supreme Court, 1992)
Mathes v. Kelton
569 S.W.2d 876 (Texas Supreme Court, 1978)
Dickens v. Willis
957 S.W.2d 657 (Court of Appeals of Texas, 1997)

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