Opinion issued November 9, 2017




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00830-CV
                           ———————————
                      IN RE STEVEN BAILEYS, Relator



   Original Proceeding on Petition for Writ of Mandamus and Prohibition


                         MEMORANDUM OPINION
      Relator, Steven Baileys, filed a petition for a writ of mandamus and

prohibition requesting that we compel the respondent trial judge to vacate an order

denying his motion to vacate orders denying his special appearance, because the
orders were entered outside of the trial court’s plenary power, and to prohibit further

proceedings.1 We conditionally grant the petition.

                                    Background
      The underlying case involves a breach-of-contract action brought by the real

party in interest, Ensource Corporation (“Ensource”), against Baileys, and his

company, Baileys Energy, LLC (“Baileys Energy”).             Baileys challenged the

respondent’s personal jurisdiction over him by special appearance.

      The respondent granted Baileys’ special appearance and dismissed Baileys as

a party on December 1, 2015. Ensource then moved for reconsideration of the

special appearance order, on the basis that it had not received notice of the December

hearing, and to compel Baileys’ responses to discovery. The respondent granted

Ensource’s motion for reconsideration as to certain discovery responses, and also

ordered “that another hearing on Defendant Steven Baileys’ Special Appearance is

Scheduled for January 11, 2016.”

      At the January 11 hearing, the respondent orally denied Baileys’ special

appearance and granted Ensource’s motion to sever its claims against Baileys

Energy from Baileys, which had recently filed for bankruptcy before that hearing,

but only signed orders granting severance. The respondent agreed with Ensource’s


1
      The underlying case is Ensource Corporation v. Baileys Energy, LLC, Cause No.
      1061661-101, pending in the County Civil Court at Law No. 3 of Harris County,
      Texas, the Honorable Linda Storey presiding.

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counsel that Baileys had enough contacts to sustain jurisdiction, stating, “There’s

plenty of contacts with [Baileys] with the State of Texas . . . . if you get me an order

I’ll be happy to sign it.”

      Ensource’s counsel submitted two proposed orders, one denying Baileys’

special appearance and another severing Baileys Energy, but later claimed that an

“apparent clerical mistake” led to the special appearance order being presented to

the respondent separately from the severance order. The respondent signed only the

order granting severance on January 11, 2016, but did not sign the order denying

Baileys’ special appearance. The respondent then signed an amended order on the

motion for severance on January 25, 2016, which now included a list of pleadings to

be placed in the severed cause against Baileys Energy.

      Baileys filed a Motion for Reconsideration of Special Appearance, and the

respondent set a hearing for June 29, 2016. On June 29, 2016—171 days from the

January 11 hearing, 198 days after the respondent signed the December order

granting Baileys’ special appearance, and 157 days after signing the January

amended order on the motion for severance—the respondent signed an order

denying Baileys’ motion for reconsideration of the court’s prior ruling on special

appearance. A duplicate order again denying Baileys’ motion for reconsideration of




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his special appearance was signed on July 12, 2016.2 This duplicate order was later

rescinded and withdrawn by the respondent’s “Order on Motion to Cancel July 12,

2016 Order and for Leave to Take Depositions,” signed on September 12, 2016.

      Baileys filed a “Motion to Declare Previous Orders Void,” requesting that the

respondent vacate the June and July orders denying his motion for reconsideration

of his special appearance on the grounds that they were void because they were

signed after the court’s plenary power had expired and, thus, he asked the respondent

to vacate them and close the case. At the hearing, held on September 12, 2016, after

Ensource’s counsel acknowledged that he had filed the proposed severance order

two days after the January hearing, but it never got signed, the trial court responded,

“See why you should bring an order with you to the hearing?” After the hearing, the

trial court signed an order on September 12, 2016, denying Baileys’ “Motion to

Declare Previous Orders Void.”

      Baileys subsequently filed this petition for writ of mandamus and prohibition.

He requested that this Court compel the respondent to vacate the September 12, 2016

Order denying his “Motion to Declare Previous Orders Void,” grant it, and prohibit




2
      Before filing this petition, Baileys had filed an appeal challenging, among other
      orders, this duplicate July 12, 2016 order, but this appeal was dismissed for want of
      prosecution for failure to file a brief. See Baileys v. Ensource Corp., No. 01-16-
      00671-CV, 2016 WL 7368079, at *1 (Tex. App.—Houston [1st Dist.] Dec. 20,
      2016, no pet.) (per curiam) (mem. op.).
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respondent from holding further proceedings in trial court cause number 1061661-

101.

                                Standard of Review
       Generally, to be entitled to mandamus relief, the relator must demonstrate that

the trial court abused its discretion and that it has no adequate remedy by appeal.

See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.

proceeding). A “trial court commits a clear abuse of discretion when it refuses to

exercise its discretion to hear and rule on pending motions.” Grant v. Wood, 916

S.W.2d 42, 45 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding). A trial

court also clearly abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to amount to a clear prejudicial error of law. Walker, 827 S.W.2d

at 839. A trial court has no discretion in determining what the law is or in applying

the law to the facts. Id. at 840. Thus, a clear failure by the trial court to analyze or

apply the law correctly will constitute an abuse of discretion. In re Allstate Cty. Mut.

Ins. Co., 85 S.W.3d 193, 195 (Tex. 2002) (orig. proceeding). Mandamus relief is

proper when the trial court issues a void order, and the relator need not demonstrate

the lack of an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d

602, 605 (Tex. 2000) (orig. proceeding); In re Flores, 111 S.W.3d 817, 818 (Tex.

App.—Houston [1st Dist.] 2003, orig. proceeding) (per curiam).


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                                  Plenary Power
      Baileys argues that the “Respondent err[ed] in denying Relator’s MOTION

TO VOID PREVIOUS ORDERS and continu[ing] to hold court and exercise

jurisdiction” because “jurisdiction was lost following the expiration of Respondent’s

plenary jurisdiction after the dismissal of Relator as a party on December 1, 2015

(Exhibit D) and subsequent severance of the claims against Relator on January 11,

2016 (Exhibit H).” Baileys asserts in support that “there was no unequivocal written

order or expression by the Respondent to vacate, set aside, modify, or amend the

December 1, 2015 order dismissing Steven Baileys as a party.” Instead, once the

claims against Baileys were severed from Baileys Energy, Baileys asserts that

“Respondent lost jurisdiction at the latest by 30 days after the date of severance,

being February 10, 2016.”

      This Court interprets Baileys’ petition as one seeking mandamus relief as to

whether the respondent trial judge retained its plenary authority when it initially

granted Baileys’ special appearance in December 2015; then after the respondent

reconsidered and orally denied Baileys’ special appearance in January 2016, whether

it retained plenary power to enter an order in writing that denied the reconsideration

of special appearance in June 2016.




                                          6
A.    Legal Principles

      A trial court generally retains jurisdiction over a case for thirty days after it

signs a final judgment, during which time the trial court has plenary power to change

its judgment. In re Patchen, No. 01-16-00947-CV, 2017 WL 976077, at *2 (Tex.

App.—Houston [1st Dist.] Mar. 14, 2017, orig. proceeding) (per curiam) (mem. op.)

(citing TEX. R. CIV. P. 329b(a) (“A motion for new trial, if filed, shall be filed prior

to or within thirty days after the judgment or other order complained of is signed.”);

id. at 329b(d) (“The trial court, regardless of whether an appeal has been perfected,

has plenary power to grant a new trial or to vacate, modify, correct, or reform the

judgment within thirty days after the judgment is signed.”); and id. at 329b(f) (“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,

filed within the time allowed by law. . .”)).

      Certain post-judgment motions, including a motion for new trial, if filed

within this initial thirty-day period, extend the trial court’s plenary jurisdiction. See

In re Patchen, 2017 WL 976077, at *2 (citing TEX. R. CIV. P. 329b(e)). After

expiration of plenary power, a trial court still may sign an order declaring a prior

judgment or order to be void as having been signed after expiration of the court’s




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plenary power. See id. (citing TEX. R. CIV. P. 329b(f) and In re Martinez, 478

S.W.3d 123, 126 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding)).

      It is well-established that an oral pronouncement is generally ineffective to

extend a court’s plenary authority, unless the oral pronouncement clearly indicates

the intent to modify a judgment at the time the words are expressed, making the

reduction to writing a mere ministerial act. An oral pronouncement indicating a

“trial court’s intention to render judgment in the future cannot be a present rendition

of judgment.” Fuentes v. Zaragoza, No. 01-16-00251-CV, 2017 WL 976079, at *2

(Tex. App.—Houston [1st Dist.] Mar. 14, 2017, no pet.) (mem. op.) (summarizing

cases where courts made statements that they would sign orders or judgments in

future were not present renditions of judgment); see State v. Naylor, 466 S.W.3d

783, 788 (Tex. 2015) (same). “The words used by the trial court must clearly

indicate the intent to render judgment at the time the words are expressed.” Inwood

Forest Cmty. Improvement Ass’n v. Arce, 485 S.W.3d 65, 71 (Tex. App.—Houston

[14th Dist.] 2015, pet. denied). If clearly indicated, then the formal entry of a signed

judgment is a merely ministerial act. See id. Otherwise, the rendition must be

reduced to writing to extend the court’s plenary power. See Walker v. Harrison, 597

S.W.2d 913, 915 (Tex. 1980) (“When there is a time limit within which the court

has jurisdiction to act, the order must be in writing, specific, and signed by the trial

judge.”). “If a trial court attempts to orally overrule a motion for new trial without


                                           8
signing such an order, the motion will be overruled by operation of law, not by the

trial court’s oral order.” F.D.I.C. v. Finlay, 832 S.W.2d 158, 161 (Tex. App.—

Houston [1st Dist.] 1992), writ denied, 849 S.W.2d 344 (Tex. 1993).

      A trial court also may not sign an order following the expiration of its plenary

authority if that order is a judicial act, rather than a clerical one. This Court has

summarized the distinction between judicial and clerical acts:

             A clerical error is a discrepancy between the entry of a judgment
      in the record and the judgment that was actually rendered. Barton [v.
      Gillespie, 178 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2005,
      no pet.)]. Rendition occurs when the trial court’s decision is officially
      announced either by a signed memorandum filed with the clerk of the
      court or orally in open court. Id.

              Unlike with clerical errors, the trial court cannot correct a judicial
      error after the expiration of plenary power by entering a judgment nunc
      pro tunc. Escobar [v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986)]. A
      judicial error is one that arises from a mistake of law or fact that requires
      judicial reasoning to correct and it occurs in the rendering, rather than
      the entering of the judgment. Barton, 178 S.W.3d at 126. “Thus, even
      if the court renders incorrectly, it cannot alter a written judgment which
      precisely reflects the incorrect rendition.” Escobar, 711 S.W.2d at 232.
      Stated another way, if 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 [power] expires. Hernandez v. Lopez, 288 S.W.3d 180,
      187 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (op. on rehearing)
      [(emphasis in original)]. A judgment rendered to correct a judicial error
      after plenary power has expired is void. Id. at 185 (citing Dikeman v.
      Snell, 490 S.W.2d 183, 186 (Tex. 1973)).




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In re D & KW Family, L.P., No. 01-11-00276-CV, 2012 WL 3252683, at *5 (Tex.

App.—Houston [1st Dist.] Aug. 9, 2012, orig. proceeding) (mem. op.) (internal

quotation marks omitted).

B.    Analysis
      In this case, the respondent’s December 1, 2015 order dismissing Baileys as

a party became a final judgment at the latest when the respondent severed Ensource’s

claims against Baileys and Baileys Energy into two separate cases on January 13,

2016. The respondent maintained its plenary power for another thirty days by

amending that same January 13 severance order on January 25, 2016. See TEX. R.

CIV. P. 329b. The order denying Baileys’ motion for reconsideration of special

appearance was untimely entered after the respondent had already lost plenary power

on June 29, 2016—171 days from the January hearing, 198 days after the respondent

had signed the order granting Baileys’ special appearance, and 157 days after signing

the amended order on the motion for severance. Thus, the June 29, 2016 order

denying Baileys’ special appearance was void because it was entered after the

respondent’s plenary power had expired on February 24, 2016. See State ex rel.

Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (“Judicial action taken after the

court’s jurisdiction over a cause has expired is a nullity.”); In re T.G., 68 S.W.3d

171, 177 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (“Judicial action taken

after the trial court’s plenary power has expired is void.”). Although the respondent


                                         10
maintained the power to declare its denial of Baileys’ motion for reconsideration of

special appearance as void, as having been signed after expiration of its plenary

power, the respondent failed to issue such an order when it denied Baileys’ motion

to declare the previous orders void on September 12, 2016. See In re Patchen, 2017

WL 976077, at *2 (citing TEX. R. CIV. P. 329b(f)).

      The respondent also did not make an unequivocal oral rendition at the January

hearing that would render the June 29, 2016 order a merely ministerial order,

memorializing its oral pronouncement in January. The respondent had found in

January that Baileys had enough contacts to sustain personal jurisdiction, but asked

Ensource’s counsel for an order to sign, stating at the hearing, “There’s plenty of

contacts with [Baileys] with the State of Texas . . . . if you get me an order I’ll be

happy to sign it.” As this Court has held, an oral pronouncement of a “trial court’s

intention to render judgment in the future cannot be a present rendition of judgment.”

Fuentes, 2017 WL 976079, at *2; see Naylor, 466 S.W.3d at 788; Inwood Forest,

485 S.W.3d at 71. An error in rendering judgment is a judicial error. See Escobar,

711 S.W.2d at 231. And the respondent could not sign a subsequent order outside

its plenary power because reducing its January pronouncement to writing is a judicial

act, rather than a clerical one, and thus, the June “judgment rendered to correct a

judicial error after plenary power has expired is void.” In re D & KW Family, 2012

WL 3252683, at *5 (citations omitted).


                                         11
      In its response, Ensource argues that “[Baileys’] argument is without merit

because the trial court’s order granting a rehearing of [Baileys’] special appearance

vacated its former order, or in the alternative, the severance of the claims against

Baileys into a new suit vacated the trial court’s former order.” In support of its first

argument, Ensource asserts that Check v. Mitchell and its progeny supports the

proposition that “any change in a judgment during the plenary period presumptively

vacates the former judgment unless the record indicates otherwise.” 758 S.W.2d

755, 756 (Tex. 1988); see also SLT Dealer Grp., Ltd. v. AmeriCredit Fin. Servs.,

Inc., 336 S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (noting

that if trial court retained plenary power when it issued second order, in that

circumstance, the second order “is not a nullity” but “is treated as a modified or

reformed judgment that implicitly vacates and supersedes the prior judgment, unless

the record indicates a contrary intent.”).

      But these cases are distinguishable because, as Baileys indicates in his reply

brief, these “courts were determining which judgment the appellate timetable runs

from, the first final judgment or the second final judgment.” Further, Check does

not indicate that granting a rehearing setting is an order or judgment. Check only

clarified that any change to the prior order, signed during the plenary power period,

will suffice to vacate the prior order. 758 S.W.2d at 756. Here, by contrast, no




                                             12
second special appearance order was signed during the respondent’s plenary power

period that would have vacated the first order. See id.

      Ensource provides no legal support for its second argument that the order

severing the claims against Baileys into a new suit vacated the trial court’s prior

interlocutory order granting his special appearance. Further, the record demonstrates

that the severance was to separate claims between Baileys and Baileys Energy

because his company had filed for bankruptcy prior to the rehearing on Baileys’

special appearance, which could not continue until Baileys Energy was properly

severed. See 11 U.S.C. § 362(a)(1) (West 2010); Greenberg v. Fincher & Son Real

Estate, Inc., 753 S.W.2d 506, 507 (Tex. App.—Houston [1st Dist.] 1988, no writ)

(noting that “automatic bankruptcy stay does not ordinarily encompass non-bankrupt

co-defendants or preclude severance of claims against them”) (citations omitted).

                                    Conclusion
      We hold that the respondent abused her discretion in failing to vacate void

orders entered after the expiration of the court’s plenary power, and we need not

determine whether Baileys lacks an adequate remedy by appeal. See In re Sw. Bell

Tel. Co., 35 S.W.3d at 605; In re Flores, 111 S.W.3d at 818; In re Patchen, 2017

WL 976077, at *2. Accordingly, we conditionally grant the petition for writ of

mandamus and order the respondent to vacate the June 29, 2016 order denying

Baileys’ Motion for Reconsideration of Special Appearance and the September 12,


                                         13
2016 order denying Baileys’ Motion to Declare Previous Orders Void. We are

confident the trial court will promptly comply, and our writ will issue only if it does

not comply within 30 days of the date of this opinion.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Higley, Massengale, and Lloyd.




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