PROCEEDING WRIT OF MANDAMUS 300th District Court Brazoria
County, Texas Trial Court Cause No. 48170
consists of Justices Boyce, Christopher, and Jamison.
27, 2017, relator Wilma Reynolds filed a petition for writ of
mandamus in this court. See Tex. Gov't Code Ann.
§ 22.221 (West 2004); see also Tex. R. App. P.
52. She asks this court to compel the Honorable C.G. Dibrell,
visiting judge of the 300th District Court of Brazoria
County, to vacate his order denying Wilma's motion for
judgment nunc pro tunc and a separate order imposing
sanctions. Both orders were signed on July 19, 2017.
has not shown that the trial court clearly abused its
discretion by denying the nunc pro tunc motion. However, the
record shows that the trial court imposed sanctions for
prosecuting a bill of review proceeding after the court's
plenary jurisdiction had expired. The sanctions order is
therefore void. Accordingly, we deny the petition for writ of
mandamus as to the order denying the motion for judgment nunc
pro tunc, but we conditionally grant the petition as to the
and Procedural Background
and David Reynolds filed for divorce in July 2008. The
property division was contested. At the conclusion of the
April 22, 2009 bench trial, the trial court made a written
division of the property and orally stated its division of
the property in accord with the written division.
18, 2009, the trial court signed the final decree of divorce,
which included a division of the property. Wilma appealed,
but our court affirmed the divorce decree because Wilma
waived her right to appeal by accepting benefits of that
judgment. See Reynolds v. Reynolds, No.
14-09-00720-CV, 2010 WL 3418209 (Tex. App.- Houston [14th
Dist] Aug. 31, 2010, pet. denied) (mem. op.).
than eight years after the divorce decree was signed, Wilma
filed a motion for judgment nunc pro tunc on July 10, 2017.
She asked the trial court to modify certain provisions of the
divorce decree based on asserted clerical errors that,
according to relator, do not conform to the trial court's
oral announcement at trial.
17, 2017, David filed a response to Wilma's motion for
judgment nunc pro tunc. The response asked the trial court to
deny the motion and to impose sanctions against both Wilma
and her attorney Carl Gordon for prosecuting an allegedly
conclusion of a hearing on July 19, 2017, the trial court
signed an order denying Wilma's motion for judgment nunc
pro tunc. He also signed a sanctions order that, among other
things, directed Gordon to pay a penalty and attorney's
fees totaling $40, 000.
obtain mandamus relief, a relator generally must show both
that the trial court clearly abused its discretion and that
the relator has 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 clearly abuses its
discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of
law or if it clearly fails to analyze the law correctly or
apply the law correctly to the facts. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding) (per curiam). The appellate court reviews
the trial court's application of the law de novo. See
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding). The relator must establish that the trial court
could reasonably have reached only one conclusion.
relator has no remedy by appeal for a trial court's
erroneous denial of a motion for judgment nunc pro tunc, and
such denial may therefore be reviewed by mandamus. See In
re Bridges, 28 S.W.3d 191, 195-96 (Tex. App.-Fort Worth
2000, orig. proceeding) (citing Shadowbrook Apartments v.
Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990)); see
also Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim.
App. 2010) (the appropriate remedy for denial of a motion for
judgment nunc pro tunc is to file an application for writ of
mandamus in a court of appeals).
when an order is void, mandamus relief is appropriate without
regard to whether relator lacks an adequate appellate remedy.
In re Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex.
2014) (orig. proceeding).