Chitsey v. Otten (In re Chitsey)

Carrie Chitsey and Chris Chitsey, Appellants v. Heather Otten, J. E. Hagan, K. R. Hagan, and Willie Mae Hagan, Appellees

In re Carrie Chitsey and Chris Chitsey

Nos. 03-21-00539-CV, 03-21-00661-CV

Court of Appeals of Texas, Third District, Austin

May 6, 2022

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-98-007701, THE HONORABLE MARIA CANTÚ HEXSEL JUDGE PRESIDING ORIGINAL PROCEEDING FROM TRAVIS COUNTY

Before Chief Justice Byrne, Justices Kelly, and Smith

MEMORANDUM OPINION

Edward Smith, Justice

Carrie and Chris Chitsey (Chitseys) appeal from the district court's order declaring a judgment nunc pro tunc void because it was signed after the expiration of the district court's plenary power. See Tex. R. Civ. P 329b(f) (providing that trial courts "may at any time . . also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired"). They have also filed a mandamus petition challenging the order and the district court's refusal to rule on their motion to strike Heather Otten's petition in intervention. We will deny mandamus relief and dismiss the appeal for want of jurisdiction.

BACKGROUND

Ron Chitsey sued K.R. Hagan, J.E. Hagan, and Willie May Hagan to quiet title to certain property in Travis County. In May of 2001, the district court rendered a default judgment in favor of Ron Chitsey. The default judgment describes the property awarded as: "A portion of Lots 6, 10 and 11, Block C, Delwood, Section 3, Plat No. 5/12, being a portion as described in Vol. 928, Page 401 of the deed and plat records of Travis County, Texas."

Ron Chitsey died in November of 2020, and the Chitseys inherited his interest in the property. In July of 2021, the Chitseys filed a motion for judgment nunc pro tunc, arguing that the default judgment was erroneous because it failed to adequately describe the property. The Chitseys asked the court to enter judgment nunc pro tunc describing the property using a metes-and-bounds description prepared by a surveyor. The description, which was attached to the motion, was based on a survey performed on April 8, 2021. On July 21, 2021, the district court granted the motion and signed and entered judgment nunc pro tunc describing the property awarded as: "A portion of Lots 6, 10, and 11, Block C Delwood Section 3, Plat No. 5/12, being a portion as described in Vol. 928, Page 401 of the deed and plat records of Travis County, Texas, and described by metes and bounds in the attached Exhibit A." (emphasis added). Exhibit A is identical to the property description prepared by the Chitseys' surveyor.

On August 16, 2021, Heather Otten filed a petition in intervention and motion for new trial asking the district court to set aside the judgment nunc pro tunc.^[1] The Chitseys filed a motion to strike alleging that Otten's petition was untimely, among other things. Otten filed an amended petition seeking, in the alternative, a declaration under the Uniform Declaratory Judgments Act that the judgment nunc pro tunc is void and attorney's fees. See Tex. Civ. Prac. & Rem. Code § 37.004 (authorizing suit to obtain declaratory relief on certain enumerated subjects). The district court held a non-evidentiary hearing at which it heard argument from the Chitseys and Otten and took the matter under advisement.

On October 4, 2021, the district court signed an order stating: "Pursuant to Texas Rule of Civil Procedure 329b(f), the Court hereby declares that the Judgment Nunc Pro Tunc signed on July 20, 2021 is void because it was signed after the Court's plenary power had expired." The Chitseys filed a motion the next day asking the court to sign an order granting their motion to strike. The district court took no action on the motion. This appeal and original proceeding ensued.

JUDGMENT NUNC PRO TUNC

The Chitseys argue in their appeal and mandamus petition that the district court erred because the judgment nunc pro tunc is not void because it properly corrected a clerical error. In the alternative, they argue that the district court violated their due process rights by setting aside the judgment without notice.

Appellate Jurisdiction

As a threshold matter, Otten challenges our jurisdiction over the Chitseys' appeal. Otten argues that a "sua sponte order voiding a judgment nunc pro tunc" pursuant to Rule 329b(f) is not final. See Lehmann v. Har-Con Corp. 39 S.W.3d 191, 195 (Tex. 2001) ("[T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment."). We will not resolve this question because it is unnecessary: the Chitseys assert the same issues challenging the order in their mandamus petition and request the same relief, and the resolution of the mandamus proceeding renders the issues on appeal moot. See Electric Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 635 (Tex. 2021) (explaining case is moot when, among other circumstances "the court can no longer grant the requested relief or otherwise affect the parties' rights or interests").

Legal Standards

The writ of mandamus is an extraordinary remedy that will issue only if the relator shows a clear abuse of discretion and that no adequate appellate remedy exists. In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding). "A trial court abuses its discretion when it acts with disregard of guiding rules or principles or when it acts in an arbitrary or unreasonable manner." In re Academy, Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding). We must defer to a trial court's factual findings that are supported by the record, C.J.C., 603 S.W.3d at 811, but "a trial court has no discretion in determining what the law is or in applying it to the facts," In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding). A court's "failure to analyze or apply the law correctly is an abuse of discretion." In re Academy, 625 S.W.3d at 25.

In this proceeding, the Chitseys argue that the district court abused its discretion because Rule 329b did not authorize it to set aside the judgment nunc pro tunc, and, effectively, that that the order is void because the court no longer had the power to act. See Electric Reliability Council, 619 S.W.3d at 640 (explaining that judgment is void if rendered without "power to act"). Ordinarily, the party seeking mandamus relief must prove that no adequate appellate remedy exists. See, e.g., In re Millwork, 631 S.W.3d 706, 711 (Tex. 2021) (orig. proceeding). However, when a trial court's order is void, mandamus relief is appropriate, and the relator does not have to show that it does not have an adequate remedy by appeal. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); see In re X.A., No. 01-19-00227-CV, 2020 WL 237939, at *4 (Tex. App.-Houston [1st Dist.] Jan. 16, 2020, orig. proceeding) (mem. op.) (holding party seeking mandamus relief from void nunc pro tunc order "need not show he lacks an adequate remedy by appeal" (citing In re Southwestern Bell Tel. Co., 35 S.W.3d at 605; In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding))).

A trial court "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." Tex.R.Civ.P. 329b(d). Filing a motion for new trial or certain other post-judgment motions can extend the trial court's plenary power for up to an additional seventy-five days. Id. R. 329b(a), (c), (e); see In re Thompson, 569 S.W.3d 169, 173 (Tex. App.-Houston [1st Dist.] 2018, orig. proceeding) ("The court's plenary power over a final judgment may not be extended more than 105 days after the judgment was signed."). After the expiration of plenary power, a court "generally lacks jurisdiction to act, and any orders it issues are typically void." Akinwamide v. Transportation Ins., 499 S.W.3d 511, 520 (Tex. App.-Houston [1st Dist.] 2016, pet. denied). However, "the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired." Tex.R.Civ.P. 329b(f).

"An attempted nunc pro tunc judgment entered after the trial court loses plenary jurisdiction is void if it corrects judicial rather than clerical errors." Texas Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 167 (Tex. 2013). 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." In re A.M.C., 491 S.W.3d 62, 67 (Tex. App.-Houston [14th Dist.] 2016, no pet.). A judicial error, on the other hand, "occurs in the rendering, rather than the entering, of a judgment and arises from a mistake of law or fact that requires judicial reasoning to fix." In re Marriage of Russell, 556 S.W.3d 451, 456 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (citing Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex. 1986)). Whether an error is clerical or judicial is a question of law that courts review de novo. Id. at 457. However, "a trial court must make a factual determination regarding whether it previously rendered judgment and the judgment's contents before it may decide the nature of the error." In re A.M.C., 491 S.W.3d at 67.

Analysis

There is no dispute that the trial court's plenary power had expired when the district court signed the judgment nunc pro tunc. Whether the district court correctly concluded the judgment nunc pro tunc was void "because it was signed after the Court's plenary power had expired" turns on whether the judgment corrected a clerical or a judicial error.

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