Affirmed and Opinion filed April 7, 2015.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-14-00252-CV

                           BARRE MORRIS, Appellant
                                          V.

                 VICTORIA BARRIENTES O’NEAL, Appellee

                    On Appeal from the 309th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-25276

                                  OPINION


      Appellant Barre Morris filed a bill of review in the trial court seeking to set
aside a judgment nunc pro tunc on the ground that the judgment is void because it
allegedly corrected a judicial error, rather than a clerical error, after the expiration
of the trial court’s plenary power. The trial court summarily denied the bill of
review. Morris asserts that the trial court committed procedural error in
considering the bill of review as well as substantive error in the judgment. We
affirm.

                                    BACKGROUND

      Appellee Victoria O’Neal filed a petition to modify in a suit affecting the
parent-child relationship. The parties entered into a mediated settlement agreement
in August 2011 to resolve the matter. On November 7, 2011, the trial court signed
a final order modifying possession of and access to the minor child and related
issues (hereinafter, “original final order”).

      In February 2012, O’Neal filed a motion with the trial court for judgment
nunc pro tunc. The basis for O’Neal’s motion was that the original final order
signed by the trial court omitted terms regarding long-distance access and
visitation, which O’Neal stated was the central reason for the parties’ mediated
agreement. The record is unclear as to what activity may have occurred before the
trial court in connection with O’Neal’s motion, and the parties dispute key details.
What is clear is that the trial court signed on April 12, 2012 a judgment nunc pro
tunc on the same petition to modify. The judgment nunc pro tunc included the
terms for long-distance access and visitation that O’Neal cited as having been
omitted from the original final order. The judgment nunc pro tunc also omitted
certain other terms that were contained in the original final order.

      One year later, in April 2013, Morris filed a verified petition for bill of
review, seeking to set aside the April 2012 judgment nunc pro tunc. Morris alleged
that the judgment nunc pro tunc corrected a judicial error with the court’s original
final order after the expiration of the trial court’s plenary power, and therefore was
void. Morris also alleged the absence of any fault or negligence on his part, stating
he did not find out about the judgment nunc pro tunc until after the time for appeal


                                            2
had expired. Morris attached a certified copy of the judgment nunc pro tunc to his
petition.

      The record once again is unclear as to what activity occurred before the trial
court in connection with Morris’ bill of review, and the parties again dispute key
details. The record does reveal that both parties filed bench briefs with the trial
court on whether the judgment nunc pro tunc is void. In February 2014, the trial
court issued a letter informing the parties that the court was denying the bill of
review. On March 6, 2014, the trial court signed the order denying Morris’ bill of
review. Neither the trial court’s letter nor the order includes any explanation for the
trial court’s decision.

                                          ANALYSIS

General Standards Regarding Bills of Review

      “A bill of review is an equitable proceeding to set aside a prior judgment
that no longer can be challenged by a motion for a new trial or by direct appeal.” In
re A.A.S., 367 S.W.3d 905, 908 (Tex. App.—Houston [14th Dist.] 2012, no pet.). It
is brought as a separate suit from the case in which the challenged judgment was
rendered. Malone v. Emmert Indus. Corp., 858 S.W.2d 547, 548 (Tex. App.—
Houston [14th Dist.] 1993, writ denied). To be entitled to relief, a bill of review
petitioner ordinarily must plead and prove three elements: (1) the petitioner has a
meritorious defense to the underlying cause of action; (2) the petitioner was
prevented from making that defense by the fraud, accident, or wrongful act of the
opposing party, or because of official mistake; and (3) these actions were unmixed
with any fault or negligence on the part of the petitioner. Caldwell v. Barnes, 154
S.W.3d 93, 96 (Tex. 2004) (per curiam). 1 However, where, as here, the petitioner

      1
          Where a bill of review is premised on a lack of service of process or notice, such as
                                                                                    (continued)
                                               3
participated in the underlying suit, the petitioner must demonstrate a meritorious
ground for appeal instead of a meritorious defense. Cannon v. TJ Burdett & Sons
Recycling, No. 01-08-00380-CV, 2009 WL 276797, *4 (Tex. App.—Houston [1st
Dist.] Feb. 5, 2009, no pet.) (mem. op.); Eastin v. Dial, 288 S.W.3d 491, 497–98
(Tex. App.—San Antonio 2009, pet. denied); see also Petro-Chem. Transp., Inc. v.
Carroll, 514 S.W.2d 240, 245 (Tex. 1974) (quoting Overton v. Blum, 50 Tex. 417,
426 (1878)).

       In a typical case, a bill of review is considered under a two-step inquiry.
Boateng v. Trailblazer Health Enters., L.L.C., 171 S.W.3d 481, 487–88 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied).2 In the first step, the court
determines as a pre-trial matter whether the petitioner has presented prima facie
proof of a meritorious defense (or, as is applicable here, a meritorious ground for
appeal). Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979); see also Beck v.
Beck, 771 S.W.2d 141, 141–42 (Tex. 1989); Boateng, 171 S.W.3d at 488. If the
petitioner does not establish prima facie proof, the court should dismiss the case.
Beck, 771 S.W.2d at 142; Baker, 582 S.W.2d at 409; Boateng, 171 S.W.3d at 488.
If, by contrast, the petitioner does establish prima facie proof, then the court should
proceed with a trial on the merits of the petition. Beck, 771 S.W.2d at 142; Baker,
582 S.W.2d at 409; Boateng, 171 S.W.3d at 488. It is not necessary, despite this
two-step inquiry, for the trial court to conduct a separate hearing in determining
whether the petitioner has presented prima facie proof of a meritorious defense or
ground of appeal. Boateng, 171 S.W.3d at 488; Ortmann v. Ortmann, 999 S.W.2d

where the petitioner is seeking to set aside a default judgment, the petitioner is relieved of having
to prove the first two elements. See Caldwell, 154 S.W.3d at 96–97; see also Mabon Ltd. v. Afri-
Carib Enters., Inc., 369 S.W.3d 809, 812–13 (Tex. 2012) (per curiam).
       2
           The two-step inquiry is not applicable where a party is relieved from having to prove
the first two elements. See Caldwell, 154 S.W.3d at 97.


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85, 88 (Tex. App.—Houston [14th Dist.] 1999, pet. denied); see also Ramsey v.
State, 249 S.W.3d 568, 576 (Tex. App.—Waco 2008, no pet.) (“The Baker pretrial
hearing is a ‘suggested procedure’ which a trial court may choose not to employ.”).

      “We review the denial of a bill of review under an abuse of discretion
standard.” Grant v. Wilson, No. 14-11-00320-CV, 2012 WL 170873, *1 (Tex.
App.—Houston [14th Dist.] Jan. 19, 2012, no pet.) (mem. op.). “The test for abuse
of discretion is whether the trial court acted arbitrarily or unreasonably, or whether
it acted without reference to any guiding rules or principles.” Id. But the
“[d]etermination of whether a bill-of-review petitioner has made a prima facie
showing of a meritorious claim or defense is a question of law we review de novo.”
Alexander v. Johnson, No. 14-08-00778-CV, 2010 WL 11201, *2 (Tex. App.—
Houston [14th Dist.] Jan. 5, 2010, no pet.) (mem. op.); see also Baker, 582 S.W.2d
at 408–09 (noting that whether the petitioner has presented a prima facie
meritorious defense “is a question of law for the court”); Cannon, 2009 WL
276797 at *3 (“When the inquiry on the bill of review concerns questions of law,
such as whether an appellant presented prima facie proof of a meritorious ground
of appeal, we review the trial court’s decision de novo.”).

Morris Failed to Preserve the Asserted Procedural Errors for Review

      In his first issue, Morris claims the trial court erred by denying him an
evidentiary hearing or, in the event the court concluded that Morris failed to
present prima facie proof of a meritorious ground for appeal in his petition, by
denying him the opportunity to amend his pleadings. The record before this court,
however, does not demonstrate that Morris ever raised these purported errors in
procedure to the trial court. Specifically, there is no reporter’s record of any
hearing before the trial court (and, consequently, no record of any oral objections



                                          5
Morris may have made), and the clerk’s record does not contain any written
motions filed by Morris asserting a procedural defect.

      As a prerequisite to this court’s review, the record must show that the
appellant raised the matter complained of to the trial court in the form of a timely
request, objection, or motion. Tex. R. App. P. 33.1(a); Lewis v. Tex. Emp’rs Ins.
Ass’n, 246 S.W.2d 599, 600 (Tex. 1952) (“Ordinarily a procedural error must be
preserved by timely action by the party complaining. This is true because a trial
judge can usually correct his procedural errors if they are brought to his
attention.”). Even if Morris did not know that his bill of review would be denied
without (as he claims) an evidentiary hearing or opportunity to amend his petition
prior to the trial court’s letter and subsequent final judgment, the record does not
contain any indication that Morris raised his procedural complaints to the trial
court once the court’s rendition became apparent. Without taking such action,
Morris failed to preserve his procedural complaints for this court’s review. See
Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex. 1988) (per curiam) (holding
party failed to preserve error where counsel believed he was appearing only for a
preliminary hearing and not a full trial, but counsel failed to move for a
continuance or otherwise object); Boateng, 171 S.W.3d at 491 (holding parties
preserved error where they filed a motion for new trial after the trial court
retroactively converted a preliminary hearing into a trial on the merits). Therefore,
Morris has waived error, and we accordingly overrule his first issue.

Morris Failed to Present Prima Facie Proof of a Meritorious Ground for Appeal
      In his second issue, Morris argues the trial court erred in denying his bill of
review on the merits. Because of the procedural ambiguity in the record, it is
unclear whether the trial court denied the bill of review based solely on the
preliminary determination of whether Morris presented prima facie proof of a

                                         6
meritorious ground for appeal, or instead whether the court’s decision was based
on other factors. Cf. Ramsey, 249 S.W.3d at 577 (“A bill-of-review . . . may not be
summarily dismissed for a reason other than the failure to make a prima facie
showing of a meritorious claim or defense.”). We need not resolve this procedural
ambiguity, however, because we conclude that Morris failed to present the required
prima facie proof.

      In order for Morris to be entitled to relief on his bill of review, he must
present prima facie proof of a meritorious ground for appeal. See, e.g., Baker, 582
S.W.2d at 408–09; Cannon, 2009 WL 276797 at *4; Ortmann, 999 S.W.2d at 87–
88. “A meritorious ground of appeal is one that, had it been presented to the
appellate court as designed, might, and probably would, have caused the judgment
to be reversed.” Cannon, 2009 WL 276797 at *4.

      Morris claimed as his meritorious ground that the trial court’s judgment
nunc pro tunc is void because it corrected a judicial error after the expiration of the
court’s plenary power. A trial court “has plenary power to . . . vacate, modify,
correct, or reform [its] judgment within thirty days after the judgment is signed.”
Tex. R. Civ. P. 329b(d); see also Rawlins v. Rawlins, 324 S.W.3d 852, 855 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). “Certain post-judgment motions, if
filed within this initial thirty day period, extend the trial court’s plenary jurisdiction
over its judgment for up to an additional seventy-five days.” Custom Corporates,
Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 838 (Tex. App.—Houston [14th Dist.]
2006, orig. proceeding); see also Tex. R. Civ. P. 329b(c), (e), (g).

      “On expiration of the time within which the trial court has plenary power, a
judgment cannot be set aside by the trial court except by bill of review for
sufficient cause . . . .” Tex. R. Civ. P. 329b(f); see also Rawlins, 324 S.W.3d at
855. However, a trial court “may at any time correct a clerical error in the record of

                                            7
a judgment and render judgment nunc pro tunc under Rule 316.” Tex. R. Civ. P.
329b(f); see also Tex. R. Civ. P. 316 (“Clerical mistakes in the record of any
judgment may be corrected by the judge . . . .”); Rawlins, 324 S.W.3d at 855.
Therefore, a trial court may issue a judgment nunc pro tunc following the
expiration of its plenary power to correct a clerical error made in entering a final
judgment. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). A trial court
may not issue a judgment nunc pro tunc following the expiration of its plenary
power to correct a judicial error made in rendering a final judgment. Id.

      “A judgment rendered to correct a judicial error after plenary power has
expired is void.” Rawlins, 324 S.W.3d at 855; see also Custom Corporates, 207
S.W.3d at 838 (“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.”). “While it is wholly unnecessary to appeal from a void judgment, it is
nevertheless settled that an appeal may be taken and the appellate court in such a
proceeding may declare the judgment void.” State ex rel. Latty v. Owens, 907
S.W.2d 484, 486 (Tex. 1995) (per curiam); see also Tex. R. Civ. P. 329b(f) (“[T]he
court may at any time . . . sign an order declaring a previous judgment or order to
be void because signed after the court’s plenary power had expired.”). Therefore,
Morris’ asserted meritorious ground for appeal is premised on a valid legal theory.

      However, the invocation of a facially valid legal theory is not itself sufficient
to satisfy a bill of review petitioner’s burden. In describing the two-step inquiry,
the Supreme Court of Texas stated that a petitioner “must [ ] allege, with
particularity, sworn facts sufficient to constitute defense and, as a pretrial matter,
present prima facie proof to support the contention.” Baker, 582 S.W.2d at 408
(emphasis added). “Prima facie proof may be comprised of documents, answers to
interrogatories, admissions, and affidavits on file along with such other evidence

                                          8
that the trial court may receive in its discretion.” Id. at 409; see also Rehak
Creative Servs. v. Witt, 404 S.W.3d 716, 726 (Tex. App.—Houston [14th Dist.]
2013, pet. denied) (“Prima facie evidence is evidence that, until its effect is
overcome by other evidence, will suffice as proof of a fact in issue. In other words,
a prima facie case is one that will entitle a party to recover if no evidence to the
contrary is offered by the opposite party.”) (internal citations and quotations
omitted).

      The only evidence the record indicates Morris presented to the trial court
was a certified copy of the judgment nunc pro tunc, which was attached as an
exhibit to Morris’ petition for bill of review. Morris did not present a copy of the
trial court’s original final order either with his petition or subsequent bench brief,
which would be necessary to demonstrate the interval of time and substantive
changes between orders to raise the possibility that the judgment nunc pro tunc was
void. Although Morris did reference certain details about the original final order in
his petition and bench brief, such statements do not qualify as evidence. See United
States v. Marks, 949 S.W.2d 320, 326 (Tex. 1997) (“[A]n attorney’s unsworn
statements are not evidence . . . .”); Laidlaw Waste Sys. (Dallas), Inc. v. City of
Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (“Generally, pleadings are not
competent evidence, even if sworn or verified.”).

      Also, the record does not indicate that Morris sought to have the trial court
take judicial notice of the original final order, which, because bill of review
proceedings are independent, is part of the record of a different case. See McDaniel
v. Hale, 893 S.W.2d 652, 673–74 (Tex. App.—Amarillo 1994, writ denied) (op. on
reh’g by Pope., J., with Reynolds, C.J. and Boyd, J., concurring) (concluding bill
of review petitioners were not able to demonstrate a meritorious ground of appeal
where they did not request the trial court take judicial notice of the underlying

                                          9
trial); see also Petro-Chem., 514 S.W.2d at 246 (stating bill of review petitioner
“should set out in his petition with some particularity the errors he claims were
committed against him in the trial and disposition of the original suit” and that
“[h]e should also introduce the transcript, and the statement of facts where needed
in the consideration of the alleged errors, in the original suit”).

       This court is aware of the specifics of the trial court’s original final order
only because Morris requested its inclusion as a supplement to the clerk’s record.
See Tex. R. App. P. 34.5(c). We decline to consider evidence not before the trial
court when it determined whether Morris had presented prima facie proof of a
meritorious ground for appeal. See Felt v. Comerica Bank, 401 S.W.3d 802, 805–
06 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“We do not consider this
evidence because it was not before the trial court . . . .”); Smith v. City of League
City, 338 S.W.3d 114, 123 n.6 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(declining to base analysis on evidence filed with the court in post-submission
briefing).

       The only evidence the record indicates Morris presented to the trial court in
support of his bill of review is the certified copy of the judgment nunc pro tunc.
This document alone does not constitute prima facie proof to support Morris’
contention that the judgment nunc pro tunc is void, because it does not provide
details about the original final order. 3 Accordingly, the trial court did not err when
it denied Morris’ bill of review. We overrule Morris’ second issue.


       3
          Morris asserts in his brief to this court that he was denied due process because he did
not have notice of the judgment nunc pro tunc. He does not argue, however, that he is relieved
from satisfying certain bill of review elements because of this purported lack of notice. But even
assuming that Morris’ petition for bill of review could be construed as being premised on a due
process violation for lack of notice, his entitlement to relief would be conditioned on his proving
the third element (lack of fault or negligence). See Caldwell, 154 S.W.3d at 97–98. The record
                                                                                        (continued)
                                                10
Morris Has Not Demonstrated that the Judgment Nunc Pro Tunc is Void

       In his third issue, Morris argues that notwithstanding issues related to his bill
of review, the trial court should have set aside the judgment nunc pro tunc because
it is a void order. Were we to evaluate Morris’ petition separate and apart from the
bill of review standards, we cannot conclude that the trial court erred because
Morris did not conclusively demonstrate that the judgment nunc pro tunc is void.

       “The party collaterally attacking the judgment bears the burden of
demonstrating that the judgment under attack is void.” Edmiston v. Harris County,
No. 14-11-00608-CV, 2012 WL 3612436, *6 n.2 (Tex. App.—Houston [14th
Dist.] Aug. 23, 2012, no pet.) (mem. op.) (quoting Kendall v. Kendall, 340 S.W.3d
483, 503 (Tex. App.—Houston [1st Dist.] 2011, no pet.)); see also Stewart v. USA
Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994) (“In a collateral
attack, the judgment under attack is presumed valid.”). As discussed in the
preceding section, Morris did not present the trial court with the original final order
or request the court take judicial notice of that order. Evidence of the date of
issuance of the original final order and its contents is necessary to raise the
possibility that the judgment nunc pro tunc is void.

       Even if we were to consider as evidence the original final order included as a
supplement to the clerk’s record in this appeal, we still cannot conclude that the
judgment nunc pro tunc is void, because there is an unresolved question of fact on
whether the trial court rendered judgment on O’Neal’s petition to modify prior to
signing the original final order. As noted above, a trial court may issue a judgment
nunc pro tunc after the court’s plenary power has expired in order to correct a


does not reveal that Morris presented any evidence to support his contention that he was unaware
of the judgment nunc pro tunc.


                                              11
clerical error, but it may not issue a judgment nunc pro tunc after expiration of its
plenary power to correct a judicial error. “The salient distinction between ‘clerical’
and ‘judicial’ errors lies in the exercise of the judgmental offices of the court.”
Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986) (per curiam). “A clerical error
is a discrepancy between the entry of a judgment in the record and the judgment
that was actually rendered by the court, and does not arise from judicial reasoning
or determination.” Rawlins, 324 S.W.3d at 855. “A judicial error, however, is an
error arising from a mistake of law or fact that requires judicial reasoning or
determination to correct.” Butler v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2000, pet. denied).

      “[T]he decision whether an error in a judgment is judicial or clerical is a
question of law.” Escobar, 711 S.W.2d at 232. But “[t]he judicial or clerical
question becomes a question of law only after the trial court factually determines
whether it previously rendered judgment and the judgment’s contents.” Id.; see
also In re Rollins Leasing Inc., 987 S.W.2d 633, 636 (Tex. App.—Houston [14th
Dist.] 1999, orig. proceeding) (“What judgment was actually rendered is a question
of fact that must be answered first.”). In the record before this court, there is no
explicit determination by the trial court of whether the court rendered judgment on
O’Neal’s petition to modify prior to signing the original final order.

      Morris argues that there is no evidence in the record of a rendition prior to
the original final order or the contents of any prior rendition, and, therefore, the
original final order is presumptively the only rendition. “[A] judgment is rendered
when the decision is officially announced orally in open court, by memorandum
filed with the clerk, or otherwise announced publicly.” Garza v. Tex. Alcoholic
Beverage Comm’n, 89 S.W.3d 1, 6 (Tex. 2002). O’Neal attached as an exhibit to
her bench brief to the trial court a printout of the Harris County District Clerk’s

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docket summary for the underlying litigation, which contains a notation for August
23, 2011 reading: “JUDGMENT RENDERED BY COURT AFTER TRIAL
(NON-JURY).” August 23, 2011 is the same date the parties’ mediated settlement
agreement is date-stamped as having been filed with the trial court. Evidence of a
prior rendition “may be from oral testimony of witnesses, written documents,
previous judgments, docket entries, or the trial judge’s personal recollection.”
Barton v. Gillespie, 178 S.W.3d 121, 127 (Tex. App.—Houston [1st Dist.] 2005,
no pet.). Therefore, although the information provided by O’Neal is not conclusive,
it does suggest the possibility of a rendition by the trial court prior to the signing of
the original final order.

      Morris further cites to a merger clause in the original final order as
supporting his assertion that there is no prior rendition. But the merger clause
merely reflects a stipulation by the parties that in the event of any differences
between the mediated settlement agreement and the order, then the order would
control. That does not answer the question of whether the trial court made a prior
rendition, particularly since the court did not sign the parties’ agreement and any
prior rendition may have been oral. See Escobar, 711 S.W.2d at 232 (“[W]hether
the court pronounced judgment orally and the terms of the pronouncement are
questions of fact.”). Because we do not know whether there was a prior rendition
of judgment by the trial court preceding the original final order or the substance of
any such rendition, we are unable to determine whether the judgment nunc pro
tunc made judicial or clerical modifications to the terms of the original final order.

      The record before this court does not conclusively establish that the trial
court’s judgment nunc pro tunc is void. Therefore, we overrule Morris’ third issue.




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                                   CONCLUSION

       Having overruled all of appellant’s issues presented, we affirm the judgment
of the trial court.




                                             /s/    Marc W. Brown
                                                   Justice



Panel consists of Justices Jamison, Busby, and Brown.




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