                           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

judgment nunc pro tunc after the expiration of its plenary power, the judgment is void.



                                               4
Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973). A judicial error is an error in

rendering the judgment. In re Daredia, 317 S.W.3d at 249; Escobar, 711 S.W.2d at

231.   It arises from a mistake of law or fact that requires judicial reasoning or

determination to correct. LaGoye v. Victoria Wood Condo. Ass'n, 112 S.W.3d 777, 783

(Tex. App.—Houston [14th Dist.] 2003, no pet.). "[I]f the judgment entered is the same

as the judgment rendered, regardless of whether the rendition was incorrect, a trial

court has no nunc pro tunc power to correct or modify the entered judgment after its

plenary jurisdiction expires." Hernandez v. Lopez, 288 S.W.3d 180, 187 (Tex. App.—

Houston [1st Dist.] 2009, no pet.) (op. on rehearing). Whether an error in a judgment is

clerical or judicial is a question of law. Escobar, 711 S.W.2d at 232.

       In the instant case, the judgment nunc pro tunc was entered after the expiration

of the trial court’s plenary power, and accordingly, we must determine whether the

alleged error in the original judgment was clerical or judicial in nature. We conclude that

the inclusion of Villa in the agreed judgment was a judicial error. The law is clear that a

drafting error by a party's attorney does not constitute a "clerical error." In re Fuselier,

56 S.W.3d 265, 268 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding); see also

Mathes v. Kelton, 569 S.W.2d 876, 877 (Tex. 1978) (illustrating, as an example of

judicial error not correctable by judgment nunc pro tunc, the judicial determination that

the terms of a rendered judgment should be changed); LaGoye, 112 S.W.3d at 784

(holding that the correction of a judgment to add a party was judicial error not subject to

correction by nunc pro tunc judgment); In re Rollins Leasing, Inc., 987 S.W.2d 633, 637

(Tex. App.—Houston [14th Dist.] 1999) (orig. proceeding) (holding that the correction of




                                                5
a judgment to reflect dismissal of only one defendant rather than two was judicial error

not correctable by judgment nunc pro tunc).

       “[P]rovisions alleged to have been inserted [in the judgment] by mistake of the

attorney nevertheless become a part of the court’s judgment and therefore are judicial

errors when thus rendered in writing by the court.” In re Daredia, 317 S.W.3d at 249

(quoting Dikeman, 490 S.W.2d at 185–86). When someone other than the trial court

prepares a proposed written order or judgment that reflects a mistake, and the trial

court, without having already rendered judgment, signs the proposed order or judgment,

the mistake becomes part of the court's judgment as actually rendered and it is

therefore a judicial error rather than a clerical error. See id.

       We conclude that the error in this case, being judicial in nature, could not be

corrected by nunc pro tunc judgment after the expiration of the trial court’s plenary

jurisdiction. Because the trial court attempted to correct a judicial error by signing a

judgment nunc pro tunc after its plenary power expired, the judgment nunc pro tunc is

void. See Dikeman, 490 S.W.2d at 186.

                                 IV. MOTION FOR SANCTIONS

       As mentioned previously, Ruiz filed a motion for sanctions against relator on

grounds that relator omitted portions of the reporter’s record, “grossly misstated and

omitted material facts and evidence,” and brought the petition “solely for delay.” Relator

further asserts that the petition is groundless.

       We first address Ruiz’s complaint that relator failed to file the reporter’s record for

the hearing on the motion for nunc pro tunc judgment. The appellate rules require

relator to file “a properly authenticated transcript of any relevant testimony from any



                                                   6
underlying proceeding, including any exhibits offered in evidence, or a statement that no

testimony was adduced in connection with the matter complained.” TEX. R. APP. P.

52.7(a)(2).   Relator failed to file a transcript or a statement that no testimony was

adduced with his record for this original proceeding. However, under the facts and law

at issue in this case, relator’s failure does not preclude mandamus relief. See, e.g., In

re 24R, Inc., 324 S.W.3d 564, 568 (Tex. 2010) (orig. proceeding) (rejecting real party’s

contention that mandamus should be denied where relators failed to file transcript or

statement because the appellate rules require relators to file only "relevant" transcripts

of testimony).   In the instant case, Ruiz makes no argument from which we could

discern that the transcript is relevant to our determination in this matter. Moreover, Ruiz

does not contend that the hearing was evidentiary in nature.           See, e.g., Barton v.

Gillespie, 178 S.W.3d 121, 127 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (allowing

evidence at nunc pro tunc hearing in the form of oral testimony, written documents,

previous judgments, docket entries, or the trial judge's personal recollection). Finally,

we note that Ruiz has not supplemented the record with the transcript. See TEX. R.

APP. P. 52.7(b) (allowing “relator or any other party to the proceeding to file additional

materials for inclusion in the record”).

       Ruiz further contends that relator failed to inform this Court in its petition for writ

of mandamus that it had not settled Ruiz’s claims against it, and the petition thus

“grossly misstated and omitted material facts.” Upon review, however, relator’s petition

did not address settlement issues between the parties, and the petition for writ of

mandamus accurately represented the factual underpinnings of relator’s claim.




                                                 7
      Finally, given our disposition of this petition, Ruiz’s allegations that the petition for

writ of mandamus is groundless or was brought solely for purposes of delay are without

merit. We deny the motion for sanctions.

                                      V. CONCLUSION

      We conclude that the trial court abused its discretion in setting aside a judgment

after its plenary power expired. See id. Relator has no adequate remedy by law. See

In re Dickason, 987 S.W.2d at 571. Accordingly, the Court, having examined and fully

considered the petition for writ of mandamus and the response thereto, is of the opinion

that the petition for writ of mandamus should be and is conditionally granted.

      IT IS SO ORDERED.



                                                  ____________________
                                                  ROGELIO VALDEZ
                                                  CHIEF JUSTICE

Delivered and filed the
2nd day of November, 2012.




                                                 8
