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In re Baileys

Court of Appeals of Texas, First District

November 9, 2017


         Original Proceeding on Petition for Writ of Mandamus and Prohibition

          Panel consists of Justices Higley, Massengale, and Lloyd.


          Laura Carter Higley Justice.

         Relator, Steven Baileys, filed a petition for a writ of mandamus and prohibition requesting that we compel the respondent trial judge to vacate an order denying his motion to vacate orders denying his special appearance, because the orders were entered outside of the trial court's plenary power, and to prohibit further proceedings.[1] We conditionally grant the petition.


         The underlying case involves a breach-of-contract action brought by the real party in interest, Ensource Corporation ("Ensource"), against Baileys, and his company, Baileys Energy, LLC ("Baileys Energy"). Baileys challenged the respondent's personal jurisdiction over him by special appearance.

         The respondent granted Baileys' special appearance and dismissed Baileys as a party on December 1, 2015. Ensource then moved for reconsideration of the special appearance order, on the basis that it had not received notice of the December hearing, and to compel Baileys' responses to discovery. The respondent granted Ensource's motion for reconsideration as to certain discovery responses, and also ordered "that another hearing on Defendant Steven Baileys' Special Appearance is Scheduled for January 11, 2016."

         At the January 11 hearing, the respondent orally denied Baileys' special appearance and granted Ensource's motion to sever its claims against Baileys Energy from Baileys, which had recently filed for bankruptcy before that hearing, but only signed orders granting severance. The respondent agreed with Ensource's counsel that Baileys had enough contacts to sustain jurisdiction, stating, "There's plenty of contacts with [Baileys] with the State of Texas . . . . if you get me an order I'll be happy to sign it."

         Ensource's counsel submitted two proposed orders, one denying Baileys' special appearance and another severing Baileys Energy, but later claimed that an "apparent clerical mistake" led to the special appearance order being presented to the respondent separately from the severance order. The respondent signed only the order granting severance on January 11, 2016, but did not sign the order denying Baileys' special appearance. The respondent then signed an amended order on the motion for severance on January 25, 2016, which now included a list of pleadings to be placed in the severed cause against Baileys Energy.

         Baileys filed a Motion for Reconsideration of Special Appearance, and the respondent set a hearing for June 29, 2016. On June 29, 2016-171 days from the January 11 hearing, 198 days after the respondent signed the December order granting Baileys' special appearance, and 157 days after signing the January amended order on the motion for severance-the respondent signed an order denying Baileys' motion for reconsideration of the court's prior ruling on special appearance. A duplicate order again denying Baileys' motion for reconsideration of his special appearance was signed on July 12, 2016.[2] This duplicate order was later rescinded and withdrawn by the respondent's "Order on Motion to Cancel July 12, 2016 Order and for Leave to Take Depositions, " signed on September 12, 2016.

         Baileys filed a "Motion to Declare Previous Orders Void, " requesting that the respondent vacate the June and July orders denying his motion for reconsideration of his special appearance on the grounds that they were void because they were signed after the court's plenary power had expired and, thus, he asked the respondent to vacate them and close the case. At the hearing, held on September 12, 2016, after Ensource's counsel acknowledged that he had filed the proposed severance order two days after the January hearing, but it never got signed, the trial court responded, "See why you should bring an order with you to the hearing?" After the hearing, the trial court signed an order on September 12, 2016, denying Baileys' "Motion to Declare Previous Orders Void."

         Baileys subsequently filed this petition for writ of mandamus and prohibition. He requested that this Court compel the respondent to vacate the September 12, 2016 Order denying his "Motion to Declare Previous Orders Void, " grant it, and prohibit respondent from holding further proceedings in trial court cause number 1061661-101.

         Standard of Review

         Generally, to be entitled to mandamus relief, the relator must demonstrate that the trial court abused its discretion and that it has no adequate remedy by appeal. See In re Prudential Ins. Co. of Am.,148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A "trial court commits a clear abuse of discretion when it refuses to exercise its discretion to hear and rule on pending motions." Grant v. Wood,916 S.W.2d 42, 45 (Tex. App.-Houston [1st Dist] 1995, orig. proceeding). A trial court also clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear prejudicial error of law. Walker, 827 S.W.2d at 839. A trial court has no discretion in determining what the law is or in applying the law to the facts. Id. at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. In re Allstate Cty. Mut. Ins. Co., 85 S.W.3d 193, 195 (Tex. 2002) (orig. proceeding). Mandamus relief is proper when the trial court issues a ...

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