Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN RE GUSTAVO BUENTELLO, M.D., DANIEL BUENTELLO, R.N.D.C., AND PA REHAB MANAGEMENT, L.L.C.
Petition for Writ of Mandamus.
Chief Justice Valdez and Justices Longoria and Hinojosa
ROGELIO VALDEZ Chief Justice 
petition for writ of mandamus, Gustavo Buentello, M.D.,
Daniel Buentello, R.N.D.C., and PA Rehab Management, L.L.C.,
contend that the trial court abused its discretion in
entering an order reinstating the underlying case after the
loss of plenary power. Relators also seek to stay the trial
court proceedings pending resolution of this original
is an extraordinary remedy. In re H.E.B. Grocery
Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding)
(per curiam). Mandamus relief is proper to correct a clear
abuse of discretion when there is no adequate remedy by
appeal. In re Christus Santa Rosa Health Sys., 492
S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator
bears the burden of proving both of these requirements.
In re H.E.B. Grocery Co., 492 S.W.3d at 302;
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)
(orig. proceeding). An abuse of discretion occurs when a
trial court's ruling is arbitrary and unreasonable or is
made without regard for guiding legal principles or
supporting evidence. In re Nationwide Ins. Co. of
Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding);
Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex.
2012). We determine the adequacy of an appellate remedy by
balancing the benefits of mandamus review against the
detriments. In re Essex Ins. Co., 450 S.W.3d 524,
528 (Tex. 2014) (orig. proceeding); In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.
proceeding). However, when an order is void, "the
relator need not show it did not have an adequate appellate
remedy, and mandamus relief is appropriate." In re
Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000).
March 28, 2017, the trial court issued an order granting the
relators' motion to dismiss the underlying case with
prejudice. On April 11, 2017, the real party in interest,
Hilda Cano, filed a "Plaintiff's Response to
Defendant's Motion to Dismiss" in which she
requested the trial court "to recall [the] Order of
Dismissal." In Cano's response, she argued that the
accident at issue in the lawsuit did not arise from medical
treatment, but instead constituted a premises liability suit,
and stated that because there "is no medical treatment
issue there is no requirement to designate experts." She
further "pray[ed] that this cause be reinstated on the
trial docket and that the ORDER OF DISMISSAL be
recalled." The record fails to contain the relators'
motion to dismiss.
judgment that disposes of all parties and issues in a case is
final and appealable. Lehmann v. HarCon Corp., 39
S.W.3d 191 (Tex. 2001). The trial court retains plenary power
to grant a new trial or to vacate, modify, correct, or reform
the judgment for thirty days after the judgment is signed.
Tex.R.Civ.P. 329b(d). The parties may extend that plenary
power by timely filing an appropriate post-judgment motion.
Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10
S.W.3d 308, 310 (Tex. 2000). If a timely motion for new trial
or motion to modify, correct, or reform the judgment is
filed, the trial court's plenary power is extended until
thirty days after all such timely-filed motions are
overruled. Tex.R.Civ.P. 329b(e), (g). An order signed after
the court loses plenary power is void. In re Brookshire
Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig.
proceeding); In re J.P.L., 359 S.W.3d 695, 705 (Tex.
App.-San Antonio 2011, pet. denied).
Texas Supreme Court has held that any "postjudgment
motion that seeks a substantive change in an existing
judgment qualifies as a motion to modify under Rule 329b(g),
thus extending the trial court's plenary jurisdiction and
the appellate timetable." Lane Bank Equip. Co.,
10 S.W.3d at 314; see In re P.J.P.R., 508 S.W.3d
588, 590 (Tex. App.-El Paso 2016, no pet.); Crotts v.
Cole, 480 S.W.3d 99, 102-03 (Tex. App.- Houston [14th
Dist.] 2015, no pet.); DeGroot v. DeGroot, 260
S.W.3d 658, 662 (Tex. App.-Dallas 2008, no pet.). In this
regard, we look to the substance of the relief sought in a
pleading rather than the formal style of the pleading or its
form of title. In re J.Z.P., 484 S.W.3d 924, 925
(Tex. 2016); Ryland Enter, Inc. v. Weatherspoon, 355
S.W.3d 664, 666 (Tex. 2011) (per curiam). Further, a
"motion for new trial is conditionally filed if tendered
without the requisite fee, and appellate deadlines run from
and are extended by that date." Garza v.
Garcia, 137 S.W.3d 36, 37-38 (Tex. 2004); see Ravani
v. Vaught, 231 S.W.3d 568, 570 (Tex. App.-Dallas 2007,
Court, having examined and fully considered the petition for
writ of mandamus and the applicable law, is of the opinion
that relators have not shown themselves entitled to the
relief sought. Accordingly, we DENY the petition for writ of
mandamus and the request for stay of the trial court
proceedings. See Tex. R. App. P. 52.8(a).
See Tex. R. App. P. 52.8(d)
("When granting relief, the court must hand down an
opinion as in any other case, " but when "denying
relief, the court may hand down an opinion but is not
required to do so."); Tex.R.App.P. 47.4 (distinguishing