Proceeding on Petition for Writ of Mandamus and Prohibition
consists of Justices Higley, Massengale, and Lloyd.
Carter Higley Justice.
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. We conditionally grant 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.
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,
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."
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.
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. 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.
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."
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.
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 ...