DENY; and Opinion Filed May 13, 2019.




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-19-00511-CV

                          IN RE JACQUELINE SUE BARR, Relator

                  Original Proceeding from the 255th Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. DF-13-22150

                              MEMORANDUM OPINION
                           Before Justices Brown, Schenck, and Reichek
                                    Opinion by Justice Brown
       In this original proceeding, relator complains that the trial court’s April 2, 2019 “Reformed

and Amended Final Order” is void because it was rendered outside the trial court’s plenary period.

Because we conclude the order is not void, we deny the petition for writ of mandamus.

       Generally, mandamus relief lies when the trial court has abused its discretion and the relator

has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004)

(orig. proceeding). Mandamus will also lie to correct a void order. In re Sw. Bell Tel. Co., 35

S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). Orders entered outside a trial court’s plenary

power are void and are subject to mandamus relief. In re Brookshire Grocery Co., 250 S.W.3d

66, 68 (Tex. 2008) (orig. proceeding). A writ of mandamus is, thus, “appropriate to set aside an

order for new trial that is granted after the court’s plenary power expires. . . .” In re Dickason, 987

S.W.2d 570, 571 (Tex. 1998) (orig. proceeding). Absent a timely-filed motion for new trial, or a

motion to vacate, modify, correct or reform a judgment, the trial court loses its plenary power over
its judgment thirty days after the judgment is signed. TEX. R. CIV. P. 329b; In re Lynd Co., 195

S.W.3d 682, 684 (Tex. 2006) (orig. proceeding); Pipes v. Hemingway, 358 S.W.3d 438, 445 (Tex.

App.—Dallas 2012, no pet.).

        The underlying proceeding involved the modification of a divorce decree in a suit affecting

the parent-child relationship. The parties reached an agreement on the modifications, and the trial

court signed a “Final Order in Suit to Modify Parent-Child Relationship” on January 17, 2019.

The parties, however, disputed whether the form and substance of the January 17 final order

conformed to their agreements. Real party in interest David Barr filed a “Motion for Partial New

Trial and/or Motion to Reform the Judgment” on February 18, 2019. The trial court heard the

motion for new trial on March 28, 2019, determined there was good cause to reform and amend

the January 17 final order, and signed a “Reformed and Amended Final Order” on April 2, 2019.

        The deadline to file a motion for new trial was thirty days after the January 17, 2019 final

order was signed, which fell on Saturday, February 16, 2019 and rolled to Monday, February 18,

2019. TEX. R. CIV. P. 4, 329b(a). Barr electronically filed the motion for new trial on February

18, 2019, but the filing was rejected by the clerk’s office because of an insufficient fee payment.

The clerk’s office returned the filing to Barr’s counsel with instructions to resubmit with the proper

filing fees by the close of business on February 21, 2019. Barr’s counsel attempted to re-file the

motion on February 19, 2019, but those attempts were rejected by the clerk’s office due to incorrect

or incomplete information. The clerk’s office instructed counsel to resubmit a corrected version

within two business days. The motion was ultimately file-stamped on February 19, 2019. Relator

maintains that the motion for new trial was, therefore, filed a day late and filed after the trial court’s

plenary power expired on February 18, 2019. Relator further argues that, as a result, the

“Reformed and Amended Final Order” signed on April 2, 2019 is void. We disagree.




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       “The Texas Supreme Court’s overarching policy in approaching the unintentional errors of

counsel is that cases should be decided on the merits rather than on a procedural default, when

possible.” Texas Dep’t of Aging & Disability Servs. v. Mersch, 418 S.W.3d 736, 742 (Tex. App.—

Houston [1st Dist.] 2013, no pet.) (citing Marino v. King, 355 S.W.3d 629, 634 (Tex. 2011)

(“Constitutional imperatives favor the determination of cases on their merits rather than on

harmless procedural defaults.”)). “The electronic filing and service rules should not become a trap

for the unwary when no harm is done.” Mersch, 418 S.W.3d at 742. The rules of civil procedure

“provide a mechanism to promote the resolution of cases on their merits rather than procedural

defaults resulting from clerical or technical mistakes.” See Krajca v. Caum, No. 01-16-00057-CV,

2017 WL 2471102, at *3 (Tex. App.—Houston [1st Dist.] June 8, 2017, pet. denied) (applying

TEX. R. CIV. P. 21(f)(6), which requires a party be given an extension of time to “complete” an

electronic filing if the document is “untimely due to a technical failure or system outage”). For

example, under rule 21(f)(11), a clerk may reject a filing that does not conform to Rule 21 if the

clerk identifies “the error to be corrected and state[s] a deadline for the party to resubmit the

document in conforming format.” TEX. R. CIV. P. 21(f)(11).

       Here, as contemplated by rule 21(f)(11), the clerk’s office rejected Barr’s timely-filed

motion for new trial, first for insufficient fees and then for non-conformance, and provided a

deadline for Barr to resubmit conforming documents. Barr paid the required filing fees and filed

a conforming motion within the time ordered by the clerk’s office. Regardless of the clerk’s file-

stamp, the motion was timely-filed within the trial court’s plenary period when it was first

transmitted to Barr’s electronic filing service provider on February 18, 2019. See TEX. R. CIV. P.

21(f)(5) (“An electronically filed document is deemed filed when transmitted to the filing party’s

electronic filing service provider. . .”); see also Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004)

(“an instrument is deemed in law filed at the time it is left with the clerk, regardless of whether or

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not a file mark is placed on the instrument and regardless of whether the file mark gives some

other date of filing.”) (internal citations omitted); Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex.

1993) (motion for new trial was conditionally filed when party tendered it to the clerk, that date

controlled for appellate purposes, and the filing was completed when the party paid the filing fee);

Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 372 (Tex. 1990) (motion

for new trial deemed filed even though petition was not file-stamped until after the deadline due

to delay caused by courthouse employee). To hold otherwise would allow a court clerk’s decision

to reject a filing, without more, to cause a party to lose its right to seek post-judgment and appellate

relief. That is not the law in Texas. See, e.g., Warner, 135 S.W.3d at 684 (“Once a party has

satisfied his duty to put a legal instrument in the custody and the control of the court clerk, he

should not be penalized for errors made by the court clerk”).

        Here, the motion for new trial was timely filed. As a result, the trial court did not abuse its

discretion by considering and ruling on that motion, and the April 2, 2019 “Reformed and

Amended Final Order” is not void. See, e.g., In re Bolster, No. 13-18-00134-CV, 2018 WL

1192716, at *1 (Tex. App.—Corpus Christi Mar. 8, 2018, orig. proceeding) (mem. op.) (denying

mandamus relief from order granting motion for new trial that was filed late due to technical

failure).

        Relator has not established a right to mandamus relief. Accordingly, we deny relator’s

petition for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the court must deny the petition if the

court determines relator is not entitled to the relief sought).




                                                     /Ada Brown/
                                                     ADA BROWN
190511F.P05                                          JUSTICE



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