Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Reynolds

Court of Appeals of Texas, Fourteenth District

September 12, 2017

IN RE WILMA REYNOLDS, Relator

         ORIGINAL PROCEEDING WRIT OF MANDAMUS 300th District Court Brazoria County, Texas Trial Court Cause No. 48170

          Panel consists of Justices Boyce, Christopher, and Jamison.

          MEMORANDUM OPINION

          PER CURIAM

         On July 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.

         Relator 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 sanctions order.

         Factual and Procedural Background

         Wilma 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.

         On May 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.).

         More 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.

         On July 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 frivolous case.

         At the 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.

         Mandamus Standard

         To 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. Id.

         A 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).

         Further, 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).

         Analysis

         I. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.