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In re Stern

Court of Appeals of Texas, Fourteenth District

January 28, 2014

IN RE JEFFREY M. STERN, INDIVIDUALLY AND D/B/A STERN, MILLER & HIGDON, Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 189th District Court Harris County, Texas Trial Court Cause No. 2004-44691.

Panel Consists of Justices Christopher, Donovan, and Brown.

MEMORANDUM OPINION

PER CURIAM

On October 16, 2013, relator Jeffrey M. Stern, Individually and d/b/a Stern, Miller & Higdon filed a petition for writ of mandamus in this Court. See Tex. Gov't Code § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this Court to compel the Honorable William Burke, presiding judge of the 189th District Court of Harris County, to vacate a judgment nunc pro tunc. Because the trial court issued the judgment nunc pro tunc to correct a judicial error, rather than a clerical error, we conditionally grant the petition for writ of mandamus.

Background

The Underlying Litigation

Relator Jeffrey M. Stern is an attorney whose practice focuses on personal injury cases. The real party in interest is Gulf Coast Orthopaedic and Spine Associates (hereinafter, "Gulf Coast"), a business entity that specialized in providing orthopedic medical care. Relator and Gulf Coast allegedly had a business arrangement wherein relator would refer clients to Gulf Coast, which would then provide medical services to those clients in exchange for an assigned interest in any legal award to the client resulting from that individual's personal injury claim. Gulf Coast filed suit against relator in 2004, claiming that relator failed to remit payments owed to Gulf Coast pursuant to their arrangement. In 2005, the suit was amended to add another plaintiff, Dr. Jeffrey Reuben, who alleged similar claims against relator.

Initially, both Gulf Coast and Reuben were represented by the same attorney—David S. Prince. While the suit was pending, however, Attorney Prince died. Another attorney, J. Michael Black, was substituted in as counsel on behalf of both Gulf Coast and Reuben. Thereafter, Reuben retained separate counsel, Sarnie A. Randle, Jr., who was substituted in solely on Reuben's behalf. Attorney Black continued to serve as counsel for Gulf Coast.

In 2006, Gulf Coast filed a suggestion of bankruptcy with the trial court, noting the pendency of bankruptcy proceedings by Gulf Coast in federal court and requesting a stay of the proceedings in the trial court. Thereafter, Rueben filed a motion to sever his claims from those of Gulf Coast, so that his claims could proceed without having to wait for resolution of the bankruptcy proceedings. The trial court granted severance, ordering that the severed case proceed under a distinct style and cause number.

Both cases remained pending for several years. Then, in May 2010, Reuben settled his claims against relator. Notwithstanding the settlement, Reuben withheld filing a motion to dismiss his claims at that time in order to ensure payment was received from relator. Reuben received the settlement payment in June 2010, but did not file a motion to dismiss. In September 2010, the trial court issued a notice of intention to dismiss Reuben's case for failure to submit a final judgment. The trial court also issued in October 2010 a notice of disposition deadline in the Gulf Coast case, indicating that it would dismiss the case for want of prosecution absent appropriate action. Attorney Randle also appears to have received a telephone call from the trial court's clerk, requesting that a motion to dismiss be filed so that the settlement between Reuben and relator could be finalized.

On October 18, 2010, Attorney Randle, who never represented Gulf Coast, filed a motion to dismiss the Gulf Coast case. The motion included the cause number and caption of the Gulf Coast case, explicitly states that the motion is being brought by Gulf Coast, makes no mention of Reuben or the settlement of Reuben's case, does not reference Attorney Black (Gulf Coast's attorney), and was signed by Attorney Randle as "ATTORNEY FOR PLAINTIFF, GULF COAST ORTHOPEDIC AND SPINE ASSOCIATES." The trial court granted the motion to dismiss on October 21, 2010 in a written order prepared by Attorney Randle.

The Motion for Judgment Nunc Pro Tunc

In November 2012, the bankruptcy trustee for Gulf Coast, Lowell T. Cage (hereinafter, "Trustee"), filed a motion with the trial court for judgment nunc pro tunc pursuant to Rule 316 of the Texas Rules of Civil Procedure, requesting that the trial court withdraw its order dismissing Gulf Coast's case and reinstate that cause of action. Trustee presented several arguments to the trial court, including that a judgment nunc pro tunc was permitted to correct a clerical error, that Trustee did not authorize Attorney Randle to file the motion to dismiss, and that the order dismissing Gulf Coast's case was void as it was in violation of the bankruptcy stay. Relator filed a plea to the jurisdiction and response to Trustee's motion.

The trial court held an evidentiary hearing on the motion for judgment nunc pro tunc on May 3, 2013, at which Attorney Randle testified and Trustee and relator presented arguments. During the hearing, the trial court candidly admitted that "clearly a mistake was made" in dismissing Gulf Coast's case. The trial court acknowledged on multiple ...


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