Opinion issued February 13, 2014




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-13-00037-CV
                            ———————————
    IN RE KENNY BATES D/B/A BATES BACKHOE SERVICE, Relator



            Original Proceeding on Petition for Writ of Mandamus



                                  OPINION

      Relator, Kenny Bates d/b/a Bates Backhoe Service, petitioned for writ of

mandamus, seeking to compel the trial court to set aside its order granting the

motion for new trial filed by real party in interest, Jacob Walker. 1 In four issues,

Bates contends that the trial court clearly abused its discretion when it (1) signed

1
      The underlying lawsuit is Jacob Walker v. Kenny Bates d/b/a Bates Backhoe
      Service, No. 11-CV-0328 (212th Dist. Ct., Galveston Cnty., Tex.).
the order granting a new trial after its plenary power had expired; (2) purportedly

granted a new trial based on factual sufficiency grounds, but applied the legal

sufficiency standard in the new trial order; (3) granted a new trial based on factual

sufficiency grounds when substantial evidence supported the jury’s findings; and

(4) signed an order granting Walker’s motion for nunc pro tunc relief despite the

temporary stay imposed by this Court.

      We conditionally grant the petition for writ of mandamus.

                                    Background

      Walker and Bates were both working on a construction project at Texas City

High School in January 2011. Walker, an electrician, alleged that he was taking

measurements in a ditch while Bates was operating a backhoe in the vicinity.

According to Walker, Bates “moved the backhoe up behind Mr. Walker, splitting

the ditch, with the boom of the backhoe fully extended. This caused the side wall

on the ditch to collapse, which then caused the backhoe to fall over into the ditch,

crushing Mr. Walker.” Walker sued Bates for negligence and sought actual and

exemplary damages.      Bates designated Drymalla Construction Company, the

contractor on the project, and LECS, Ltd., an electrical subcontractor and Walker’s

employer, as responsible third parties.

      The jury found that the negligence of Bates, LECS, and Walker proximately

caused the occurrence in question. The jury apportioned 50% negligence to Bates


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and 25% to both LECS and Walker. The jury ultimately awarded $129,129 in

damages to Walker. On August 15, 2012, the trial court signed a final judgment,

rendering judgment for Walker in the amount of $64,564.50 in damages and

$4,537.12 in pre-judgment interest.

      On September 13, 2012, Walker moved for a new trial, arguing that the

jury’s findings that he and LECS were negligent were against the great weight and

preponderance of the evidence. The trial court held a hearing on this motion on

October 23, 2012. At the close of this hearing, the trial court orally granted the

motion for new trial, but it did not sign a written order explicitly granting the

motion at this time. Instead, the trial court made a docket entry noting that it had

granted Walker’s motion for new trial. The docket sheet also reflected that the

court issued a new docket control order on November 15, 2012, which set the case

for trial in April 2013. The mandamus record contains a signed written order

granting the motion for new trial, but this order is dated December 21, 2012, a date

that undisputedly falls outside of the trial court’s plenary-power period.2


2
      The docket sheet contains the following notations relevant to this mandamus
      proceeding:
      •     10/23/2012 Motion for New Trial
            Result: Granted
      •     10/25/2012 Check Status
            Need dco/new jtrl 4/29/13 ptc 4/22/13 need new trial order
      •     11/06/2012 Proposed Order
      •     11/13/2013 Correspondence from Attorney
      •     11/15/2012 Docket Control Order
                                          3
      Bates then petitioned this Court for a writ of mandamus. On February 4,

2013, this Court granted Walker’s motion to stay all proceedings in the trial court

pending our resolution of Bates’ mandamus petition. We stayed, until further

order of this Court, all underlying proceedings.

      On March 4, 2013, one month after we entered our stay order, Walker filed a

motion in the trial court seeking nunc pro tunc relief. 3 Walker argued that, after

the motion for new trial hearing, he filed a proposed order granting a new trial with

the trial court. He argued that his counsel “diligently followed up with” the trial

court concerning the signing of the order and that, during the court’s plenary-

power period, the trial court’s staff “indicated to [Walker’s] counsel’s staff that the

order had been signed and had been routed to the District Clerk’s office for

imaging.” Walker’s counsel contacted the District Clerk’s office, which informed

counsel that it did not have the order, and it “re-directed [Walker’s] counsel’s

office back to” the trial court’s office, which informed him that it “could not locate

the signed Order either.” Walker finally received a signed order dated December

21, 2012, which “clearly suggested” that the trial court had re-signed the new trial

order. Walker thus argued that nunc pro tunc relief was appropriate to reflect that

      •      11/16/2012 Copy of Notice
      •      12/21/2012 Court Coordinator’s Case Notes
             New Trial order signed by Judge Criss
3
      Walker supported this motion with the affidavit of Elisa Villarreal, a legal
      assistant for Walker’s counsel.
                                          4
the trial court originally signed the order granting Walker a new trial on a date

within the trial court’s plenary-power period.

      On March 18, 2013, the trial court signed an order granting nunc pro tunc

relief. The order stated:

      After considering Plaintiff’s Motion for Nunc Pro Tunc Relief, the
      Court is of the opinion that Plaintiff’s Motion for Nunc Pro Tunc
      Relief should be GRANTED. The Court granted Plaintiff’s Motion
      for New Trial and signed a written order within the Court’s plenary
      period. Due to a clerical error, the Court had to resign a written order
      after the expiration of the plenary period. The Court now ORDERS
      that Nunc Pro Tunc relief is proper, that it has jurisdiction over the
      case, and that the Court’s docket control order remains valid, subject
      to the Appellate Court’s stay of this Court’s proceedings.

The trial court did not state in this order the date during the plenary-power period

on which it purportedly signed a written order granting a new trial, nor did it sign

and file new trial order reflecting the corrected date. Bates then moved for leave to

file a supplemental mandamus petition in order to challenge the validity of the

order on several grounds, including arguing that the order violated our temporary

stay. We granted leave for Bates to supplement his petition.

                               Standard of Review

      Mandamus relief is available only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310

S.W.3d 419, 422 (Tex. 2010) (orig. proceeding) (per curiam).           A trial court

commits a clear abuse of discretion when its action is “so arbitrary and


                                          5
unreasonable as to amount to a clear and prejudicial error of law.” In re CSX

Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam). A trial

court has no discretion in determining what the law is or in applying the law to the

particular facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)

(orig. proceeding). Mandamus relief is appropriate when a trial court has acted

after its plenary power has expired. In re Lovito-Nelson, 278 S.W.3d 773, 776

(Tex. 2009) (orig. proceeding) (per curiam) (citing In re Brookshire Grocery Co.,

250 S.W.3d 66, 68 (Tex. 2008) and In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605

(Tex. 2000)).

            New Trial Order Signed Outside Plenary-Power Period

      A.     Signing of New Trial Order

      If a motion for new trial is not determined by written order signed within

seventy-five days after the judgment was signed, the motion shall be considered

overruled by operation of law on expiration of that time period. See TEX. R. CIV.

P. 329b(c); Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (orig.

proceeding) (per curiam); In re Taylor, 113 S.W.3d 385, 390 (Tex. App.—Houston

[1st Dist.] 2003, orig. proceeding). If a party timely files a motion for new trial,

the trial court has plenary power to grant a new trial until thirty days after all such

timely filed motions are overruled, either by a written and signed order or by




                                          6
operation of law, whichever occurs first. TEX. R. CIV. P. 329b(e); Faulkner, 851

S.W.2d at 188; In re Taylor, 113 S.W.3d at 390.

      Courts have repeatedly held that Rule 329b requires a signed written order to

grant a new trial.     In re Lovito-Nelson, 278 S.W.3d at 775; Horizon/CMS

Healthcare Corp. v. Fischer, 111 S.W.3d 67, 68 (Tex. 2003) (per curiam) (“We

also decline respondent’s request . . . that we overrule our precedent (and ignore

Texas Rule of Civil Procedure 329b) requiring written orders granting new

trials.”); Faulkner, 851 S.W.2d at 188 (“An order granting a new trial . . . must be

written and signed.”); In re N. Natural Gas Co., 327 S.W.3d 181, 185 (Tex.

App.—San Antonio 2010, orig. proceeding); In re Taylor, 113 S.W.3d at 389–90

(“Texas Rule of Civil Procedure 329b requires a written order to effectively grant a

new trial.”). Courts have also held that neither a trial court’s oral pronouncement

granting a motion for new trial, nor a docket entry indicating that such a motion

was granted, nor a written order setting the case for trial are permissible substitutes

for a signed, written order adjudicating the merits of the motion for new trial as

required by Rule 329b. Faulkner, 851 S.W.2d at 188; Olmos v. Olmos, 355

S.W.3d 306, 310 (Tex. App.—El Paso 2011, no pet.) (“A trial judge’s oral

pronouncement granting a motion for new trial and a docket entry indicating that

the motion was granted cannot substitute for a written order required by Rule 329b.

This is true even when the oral pronouncement is accompanied by a written


                                          7
scheduling order setting the case for trial.”); Estate of Townes v. Wood, 934

S.W.2d 806, 807 (Tex. App.—Houston [1st Dist.] 1996, orig. proceeding) (“The

written signed order setting the case for trial is not a substitute for a written, signed

order granting a motion for new trial because the order setting the case for trial

does not adjudicate the merits of the motion for new trial.”).

       As the Texas Supreme Court noted in In re Lovito-Nelson,

       It is important that the requirement of a written order granting a
       motion for new trial be a bright-line rule. Otherwise, one might argue
       that all sorts of conduct should be given the same effect—a trial
       setting or other setting, a status conference, a hearing on a discovery
       motion, a request for discovery—the list is endless.

278 S.W.3d at 775. Thus, if the trial court does not sign a written order explicitly

granting the motion for new trial, that motion is overruled by operation of law

seventy-five days after the trial court signed the judgment, and the trial court’s

plenary power expires thirty days after that. See Faulkner, 851 S.W.2d at 188;

Olmos, 355 S.W.3d at 311 (“Since the trial court never signed a written order

granting the motion for new trial, it was overruled by operation of law seventy-five

days after the judgment was signed.”); see also Estate of Townes, 934 S.W.2d at

807 (“The question is whether the trial court signed an order determining the

merits of the motion for new trial before losing jurisdiction. It did not.”) (emphasis

in original).




                                           8
      Here, the trial court signed its final judgment on August 15, 2012. Walker

timely moved for a new trial on September 13, 2012. The trial court thus had

seventy-five days from the signing of the judgment, or until October 29, 2012, to

sign a written order granting a new trial before Walker’s new trial motion was

overruled by operation of law, and it had an additional thirty days, or until

November 28, 2012, before its plenary power expired. The mandamus record

reflects that, although the trial court held a hearing and orally granted Walker’s

motion for new trial on October 23, 2012, and issued a docket control order on

November 15, 2012, setting the case for trial in April 2013, it did not sign a written

order granting Walker’s motion for new trial until December 21, 2012, after its

plenary power had expired.

      In response to Bates’ petition for writ of mandamus, Walker states that

although the signed order on file with the district clerk’s office is dated December

21, 2012, “there is evidence the Trial court signed an order granting Mr. Walker a

new trial much earlier.” Walker contends that, after filing a proposed order with

the court on November 5, 2012, his counsel’s office “diligently followed up with”

the trial court’s office. Within the plenary-power period, the trial court’s office

allegedly communicated to Walker’s counsel’s office that an order had been signed

and sent to the district clerk for imaging; however, when Walker’s counsel

contacted the clerk’s office, it advised him that it did not have the order and it “re-


                                          9
directed Mr. Walker’s counsel’s office back to the Trial Court.”               Walker

substantiated this contention with the affidavit of Elisa Villarreal, a legal assistant

at his counsel’s office, and he urges this Court to accept Villarreal’s affidavit as

evidence that the trial court signed a written order granting a new trial within its

plenary-power period. We decline to do so.

      The Texas Supreme Court made it clear in In re Lovito-Nelson that, to grant

a new trial, Rule 329b requires a written order signed by the trial court within the

plenary-power period and that this requirement is a “bright-line rule.” 278 S.W.3d

at 775; Estate of Townes, 934 S.W.2d at 807 (holding that signed written order

must explicitly adjudicate merits of motion for new trial). The mandamus record

here includes a signed written order granting a motion for new trial, but this order

was undisputedly signed outside the plenary-power period. The only indication

that the trial court signed a written order granting Walker’s motion for new trial

within the plenary-power period is an affidavit sworn to by an employee of

Walker’s counsel’s office, and this affidavit does not identify the date that the trial

court allegedly signed the new trial order; instead, the affidavit states only that the

order was allegedly signed at some point before the plenary-power period expired.

We will not credit this affidavit over the new trial order itself, which clearly

reflects that it was signed on December 21, 2012.




                                          10
      We therefore hold that because the order granting Walker’s motion for new

trial was signed outside the trial court’s plenary-power period, the order is void.

See In re Taylor, 113 S.W.3d at 390.

      B.     Trial Court’s Nunc Pro Tunc Order

      In his response to Bates’ mandamus petition, Walker pointed out that he had

filed a motion for nunc pro tunc relief with the trial court to correct the date on

which the trial court signed the order granting his motion for new trial. Walker

filed this motion with the trial court on March 4, 2013, one month after this Court

stayed the underlying proceedings, at Walker’s request, until further order of this

Court pending disposition of Bates’ mandamus petition. The trial court granted

this motion on March 18, 2013, ruling that it had granted Walker’s new trial

motion and signed a written order to that effect within its plenary-power period and

that, due to a clerical error, it had to re-sign a written order after its plenary-power

period had expired. This order did not state the specific date within the plenary-

power period on which the trial court purportedly signed the order granting a new

trial, and the trial court did not issue a new order granting a new trial that reflected

a signing date within the plenary-power period.         See Daniels v. Comm’n for

Lawyer Discipline, 142 S.W.3d 565, 573 (Tex. App.—Texarkana 2004, no pet.)

(“A nunc pro tunc judgment, although signed later, relates back to the date of the

original judgment and is effective as of the earlier date.”); In re Taylor, 113


                                          11
S.W.3d at 393 (stating, in case involving question of whether new trial order was

signed outside plenary-power period, that nunc pro tunc order may not be used “to

backdate the signing of a written order that was not in fact signed earlier,” but

allowing correction of order granting new trial via nunc pro tunc relief because

nunc pro tunc order in that case recited specific date within plenary-power period

that original new trial order had been signed).

      An appellate court may grant “any just relief pending the court’s action on”

a mandamus petition, including a stay of all underlying proceedings in the trial

court. See TEX. R. APP. P. 52.10(a)–(b). A stay of the underlying proceedings

prevents the parties and the respondent trial court from taking action in the case

until they receive further orders from the appellate court. In re Martinez, 77

S.W.3d 462, 464 (Tex. App.—Corpus Christi 2002, orig. proceeding); see also

Oryx Capital Int’l, Inc. v. Sage Apartments, L.L.C., 167 S.W.3d 432, 438 (Tex.

App.—San Antonio 2005, no pet.) (“When this Court stayed all proceedings in the

trial court, the parties and the trial court were ordered to take no further action on

the case until they received further orders from this court or we resolved the

[interlocutory] appeal.”). Parties in the trial court must comply with orders of the

appellate court. Oryx Capital Int’l, 167 S.W.3d at 438.

      Orders issued by a respondent trial court in violation of an appellate court

stay order are void. See City of Corpus Christi v. Maldonado, 398 S.W.3d 266,


                                         12
269 n.3 (Tex. App.—Corpus Christi 2011, no pet.) (holding trial court’s temporary

injunction order void because court entered order despite appellate court staying

underlying proceedings pending disposition of interlocutory appeal); In re Helena

Chem. Co., 286 S.W.3d 492, 498 (Tex. App.—Corpus Christi 2009, orig.

proceeding) (“[A]ny actions subsequently made by such parties in the trial court

are rightfully considered violations of the stay and are void as a matter of law.”);

Oryx Captial Int’l, 167 S.W.3d at 438 (“The trial court’s order dismissing Oryx

from the case was entered in direct violation of our [stay] order and is therefore

void.”); In re El Paso Cnty. Comm’rs Court, 164 S.W.3d 787, 787 (Tex. App.—El

Paso 2005, orig. proceeding) (“The orders issued by Respondent are in direct

violation of this Court’s stay order, and therefore are void.”).

      Here, we granted Walker’s motion to stay the underlying proceedings on

February 4, 2013, ruling that the underlying proceedings were stayed until further

order of this Court. We have not issued an order lifting the stay, nor has any party

or the trial court requested that we do so. See Oryx Capital Int’l, 167 S.W.3d at

438 (“If Sage desired to non-suit its claims against Oryx, Sage should have asked

this court to lift our stay so that it could file its non-suit in the trial court. Instead,

Sage chose to circumvent our authority.”). Walker then filed a motion for nunc

pro tunc relief with the trial court on March 4, 2013, while the stay was in place,

and the trial court granted the motion on March 18, 2013. Walker thus violated our


                                            13
stay order and, by his actions, caused the trial court to violate our order as well.

See id. Because the trial court’s nunc pro tunc order was entered in direct violation

of our stay order, we hold that the trial court’s order is void. See Maldonado, 398

S.W.3d at 269 n.3; Oryx Capital Int’l, 167 S.W.3d at 438; In re El Paso Cnty.

Comm’rs Court, 164 S.W.3d at 787–88.

      Because we hold that the trial court’s nunc pro tunc order is void and of no

effect, the only order granting Walker’s motion for new trial that we may consider

is the order signed on December 21, 2012, which, as we have already held, is also

void because the trial court signed it outside of the court’s plenary-power period.

We therefore hold that Bates has established his entitlement to mandamus relief.

See In re Lovito-Nelson, 278 S.W.3d at 776 (holding that mandamus relief is

appropriate when trial court acts after its plenary power has expired).

      We sustain Bates’ first issue. 4

                                      Conclusion

      We conditionally grant the petition for writ of mandamus. We lift the stay

entered by this Court on February 4, 2013. We order the trial court to vacate the


4
      Because we hold that the trial court signed the order granting Walker’s motion for
      new trial outside of its plenary-power period and that, therefore, the order is void,
      we need not address Bates’ second and third issues: whether the trial court abused
      its discretion by granting a new trial on factual sufficiency grounds but applying
      the legal sufficiency standard and whether the trial court abused its discretion by
      granting a new trial on factual sufficiency grounds when substantial evidence
      supported the jury’s findings.
                                           14
December 21, 2012 order granting Walker’s motion for new trial and to reinstate

the August 15, 2012 final judgment.5 The writ will issue only if the trial court fails

to do so.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Sharp, concurring without opinion.


5
      The original trial judge, the Honorable Susan Criss, resigned during the pendency
      of this mandamus proceeding. Normally, when the respondent trial judge resigns,
      we abate the mandamus proceeding to allow the successor judge to reconsider the
      ruling. See TEX. R. APP. P. 7.2(b) (“If the case is an original proceeding under
      Rule 52, the court must abate the proceeding to allow the successor to reconsider
      the original party’s decision.”). Here, however, because we hold that the trial
      court’s order granting Walker’s new trial motion is void because it was signed
      outside the plenary-power period, and the order granting nunc pro tunc relief is
      also void because it was signed in violation of our stay of the trial court
      proceedings, there are no orders for the successor judge to reconsider. See, e.g.,
      Martin v. Tex. Dep’t of Family & Protective Servs., 176 S.W.3d 390, 392 (Tex.
      App.—Houston [1st Dist.] 2004, no pet.) (stating that after trial court loses plenary
      power, it lacks jurisdiction to act in matter); see also Custom Corporates, Inc. v.
      Sec. Storage, Inc., 207 S.W.3d 835, 838 (Tex. App.—Houston [14th Dist.] 2006,
      no pet.) (“Orders issued outside of a trial court’s plenary power are typically void,
      because a court no longer has jurisdiction to act once its plenary power has
      expired.”); In re Bokeloh, 21 S.W.3d 784, 793 (Tex. App.—Houston [14th Dist.]
      2000, orig. proceeding) (“A void order is entirely null within itself; it is not
      susceptible to ratification or confirmation and its nullity cannot be waived.”).
      Thus, under these factual circumstances, we will not abate to allow the successor
      judge to reconsider the original rulings. See TEX. R. APP. P. 2 (providing that
      appellate court may suspend operation of particular rule of appellate procedure in
      case for “good cause”).
                                           15
