In Re Dakota Directional Drilling, Inc., Dakota Utility Contractors, Inc., And David Luke Fouse v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00317-CV
__________________
IN RE DAKOTA DIRECTIONAL DRILLING, INC.,
DAKOTA UTILITY CONTRACTORS, INC., AND DAVID LUKE FOUSE
__________________________________________________________________
Original Proceeding
284th District Court of Montgomery County, Texas
Trial Cause No. 20-01-00732-CV
__________________________________________________________________
MEMORANDUM OPINION
An order was issued on December 23, 2021, dismissing Trial Cause Number
20-01-00732-CV. Almost five months later, on May 20, 2022, the trial court
declared that the dismissal order was ineffective and that the case remained pending
as an active case on the court’s docket. Three of the trial court defendants sought
mandamus relief in this Court. They argue the December 2021 order is a final order
for the purposes of determining when the trial court’s plenary power expired and
that the May 2022 order is void. The trial court plaintiffs argue the December order
was interlocutory and that this Court lacks jurisdiction over this proceeding because
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the mandamus petition is a collateral attack lodged against a valid order the trial
court issued in May 2022. We conclude we possess mandamus jurisdiction over this
proceeding, that the December 2021 order finally disposed of the entire case, that
the trial court possessed the jurisdictional power to issue the December 2021 order
and caused the order to issue, that the trial court’s plenary power over the case
expired before the trial court issued the May 2022 order, and that the May 2022 order
is void. Accordingly, we conditionally grant mandamus relief.
Background
In January 2020, Kevin Josey and Kimberly Josey (“Josey”) filed a personal
injury suit against David Luke Fouse (“Fouse”), Dakota Directional Drilling, Inc.,
Dakota Underground Contractors, Inc., and Dakota Utility Contractors (“the Dakota
Defendants”) for personal injuries sustained in a motor vehicle accident. Josey
alleged that Fouse, while operating a motor vehicle owned by one or more of the
other defendants and in the scope of his employment with one or more of the other
defendants, failed to control the vehicle and crashed into the rear of the vehicle
driven by Kevin Josey. The Dakota Defendants filed answers. In September 2020,
the trial court signed a docket control order (“DCO”) that set a July 6, 2021 trial date
and required a joint notice filing, as follows:
JOINT NOTICE FILING: 14 DAYS BEFORE TRIAL
All parties will file a SINGLE Joint Notice with the Court, answering:
(1) Are you ready for trial?
(2) What is the estimated length of time for trial?
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(3) Do you need a Pre-Trial conference and, if so, why?
– The Court will take up pre-trial motions in the hour prior to
trial. You should request a Pre-Trial conference only if you need more
time than that.
(4) Are there any pending motions? If so, what are they and when
were they filed?
(5) Are there any special needs or accommodations for the
presentation of the case, including any issues related to the availability
of counsel and witnesses?
If there is a disagreement among the parties as to any of these five items,
the Joint Notice will state the positions of each of the parties.
ANY PARTY WHO FAILS TO PARTICIPATE IN THE
DRAFTING PROCESS WILL BE SUBJECT TO SANCTIONS,
INCLUDING DISMISSAL FOR WANT OF PROSECUTION
AND A FINDING OF ABANDONMENT OF CLAIMS OR
DEFENSES PURSUANT TO TEXAS RULES OF CIVIL
PROCEDURE 165 AND 165a.
– If any party does not participate with the Joint Notice, the party or
parties filing the Joint Notice shall identify who did not participate.
IF A JOINT NOTICE IS NOT TIMELY FILED, THE COURT
WILL PRESUME THAT THE PARTIES HAVE NO FURTHER
INTEREST IN PURSUING OR DEFENDING THIS MATTER
AND THE COURT WILL DISPOSE OF THIS SUIT BY
DISMISSAL FOR WANT OF PROSECUTION AND A FINDING
OF ABANDONMENT OF CLAIMS OR DEFENSES PURSUANT
TO TEXAS RULES OF CIVIL PROCEDURE 165 AND 165a.
In April 2021, Josey filed a motion for continuance. The trial court granted
the motion for continuance in a written order and signed a new docket control order
with a January 3, 2022 trial date and a joint notice filing due 14 days before trial.
The court coordinator notified counsel by email that the trial court had granted the
motion for continuance and issued a new docket control order.
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In October 2021, Dakota Directional Drilling, Inc. and Dakota Utility
Contractors, Inc. filed a motion for continuance and requested a new docket control
order. The trial court granted the motion for continuance in a written order. On
October 22, 2021, the trial court issued a new docket control order that set a May 2,
2022 trial date and required a joint notice filing 14 days before trial. The District
Clerk notified Fouse that the trial court had signed the orders but the mandamus
record does not show that the other parties were notified that the trial court had
signed an order granting a continuance and issued a new docket control order. The
Dakota Defendants submitted their pre-trial filings on December 21, 2021.
On December 23, 2021, the trial court signed an Order of Dismissal of Failure
to File Joint Notice, as follows:
On the 23rd day of December, 2021 came on the Court’s pre-trial
review of the above-styled and numbered case. After being duly
ordered under the Court’s Docket Control Order, the Parties failed to
timely file the required Joint Notice Filing. The Court has previously
noticed the Parties that failure to file the Joint Notice Filing may result
in dismissal without further notice to the Parties.
The Court, having considered the failure of the Parties to timely
file the Joint Notice Filing and how heavily the Court relies upon the
Joint Notice Filing in setting its dockets and trying its cases, finds that
this case should be dismissed for want of prosecution.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the above styled and numbered cause be dismissed and
same is hereby removed from the docket of this Court.
The Parties are hereby notified that upon filing a Motion to
Reinstate the Movant must contact the Court via email to
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amber.park@mctx.org to advise that such Motion has been filed. Any
such Motion must be set on the Court’s Submission Docket. The
Movant is responsible for setting with the Court, filing and serving the
Notice of Submission of the Motion to Reinstate.
The parties’ lawyers received copies of the dismissal order. On December 28,
2021, Josey’s lawyer sent an email to a court employee, as follows:
We received the Order of Dismissal for Failure to file Joint
Notice from your office. However, the new docket control order which
was signed on October 22, 2021 by Judge Bays shows the Joint Notice
is not due until April 18, 2022. I have attached a copy of the new docket
control order for reference. Please correct this matter and notify all
parties that this case will remain on the Court’s Docket.
In April 2022, Josey filed another motion for continuance. In response,
Dakota Directional Drilling, Inc. and Dakota Utility Contractors, Inc. argued that the
trial court’s plenary power over the case expired in January 2022, and the trial court
lacked the authority to reinstate the case. The trial court held a hearing in which the
attorneys discussed documents in the court’s file but no testimony or other evidence
was offered or admitted. The trial court explained:
The date that we had on the calendar for you that was continued
did not come off of our calendar, our trial calendar, which then
prompted the – our court’s administrator to look to see about whether
joint notices had been filed 14 days before the first day of the two-week
docket. Y’all had not filed one for the December dock- -- or I guess it
was, like, January 2nd or something. But anyway, whenever y’all’s
original trial setting was, y’all hadn’t filed one. Well, no surprise
because your trial had been continued, but she didn’t know that. So she
sent out a DWOP notice, or let me be precise. She sent out a dismissal,
and your case was actually dismissed back on December 23rd of 2021.
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The reason that matters is because I’m – I’m flush out of plenary
jurisdiction, and I can’t do a thing to revive this case.
At the conclusion of the hearing the trial court noted that it was too late to
correct the dismissal and Josey would have to re-file the lawsuit. Three days later
Josey filed a Motion to Reconvene Status Conference. In the motion Josey asked the
trial court to retain the case on the docket. In response, Dakota Directional Drilling,
Inc. and Dakota Utility Contractors, Inc. argued the trial court had lost plenary power
and no longer possessed the authority to reinstate the case.
On May 6, 2022, Josey filed a motion to declare the dismissal order
ineffective. In this motion Josey asserted that on December 28, 2021, their counsel
emailed a court employee in a communication they argued should be considered as
a motion to reinstate the case. They argued the dismissal order as interlocutory
because it was not signed after a formal presentation of evidence, did not state that
“all relief not granted is denied”, the new docket control order had removed the
technical administrative requirements, and the defendants had outstanding claims for
costs. They argued the trial court erroneously dismissed the case in its year-end
DWOP docket because a superseding docket control order did not require action
before the dismissal date.
The Dakota Defendants responded to Josey’s motion by arguing that the
dismissal order on its face disposed of the case and required the filing of a motion to
reinstate within 30 days to extend the trial court’s plenary power beyond 30 days
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from the dismissal date. They asserted that the motion for a continuance had not
been granted and on December 20, 2021, they submitted their pre-trial filings.
On May 19, 2022, Josey filed a motion to reinstate the case. In this motion
Josey asserted that four days after the trial court signed the order and immediately
upon receiving notice that the order had been signed, their counsel submitted an
email that informed the trial court through a person designated to receive
communications that the order had been entered in error because the effective docket
control order did not require a joint notice filing on December 21, 2021. The
following day they filed a reply to the Dakota Defendants’ response. In that reply
Josey accused the Dakota Defendants of trying to mislead the court by making a
facially false statement that the order granting the motion for continuance and the
docket control order had not issued.
On May 20, 2022, the trial court signed an order declaring the dismissal order
ineffective, as follows:
The Court has considered Plaintiffs’ Motion to Declare Dismissal
Order Ineffective and to Declare Continuing Pendency of Cause. After
considering the motion before the Court, it is the opinion of the Court
that the Motion should be granted. IT IS THEREFORE
DECLARED, that the dismissal order signed on December 23,
2021 was signed in error as the result of a clerical/ministerial error of
the court, and it is therefore ORDERED to be INEFFECTIVE. THE
COURT FURTHER
FINDS that the Docket Control Order signed on April 14, 2021
was superseded by the Docket Control Order signed on October 22,
2021, with the superseding order therefore being the controlling Docket
Control Order on December 23, 2021, at the time the dismissal order
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was signed. The October 22, 2021, Docket Control Order, on December
23, 2021, had no requirement for the filing of a Joint Notice Filing until
April 18, 2022. That deadline was in fact met by Plaintiffs on April 18,
2022.
The Court therefore DECLARES this case to remain pending in the
Court, and an active case on the Court’s docket.
After declaring the dismissal order to have been ineffective, the trial court
denied the motion for summary judgment of Dakota Underground Contractors, Inc.
The trial court set the case for trial then reset the trial date to November 28, 2022.
Fouse filed his original answer on September 16, 2022. On September 28, 2022, the
four defendants filed a joint plea to the jurisdiction. The trial court stayed the trial
until this mandamus proceeding concludes.
Standard of Review
To be entitled to mandamus relief, a relator must show both that the trial court
abused its discretion and that there is no adequate remedy by appeal. In re Prudential
Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). “Mandamus is
proper if a trial court issues an order beyond its jurisdiction.” In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). A relator has no adequate
remedy at law when the trial court sets aside a judgment after its plenary power
expired. In re Daredia, 317 S.W.3d 247, 249 (Tex. 2010) (orig. proceeding).
Is the Dismissal Order Interlocutory?
Josey argues the December 2021 dismissal order was an explicitly
interlocutory order properly set aside by the judge’s May 2022 clarifying order. They
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argue the interlocutory nature of the trial court’s dismissal order is revealed by
examining the Dakota Defendants’ pleadings and a motion for summary judgment.
The original answer filed by Dakota Directional Drilling, Inc. and Dakota Utility
Contractors, Inc., invoked their right to a reduction of any dollar verdict which might
be rendered in the cause by credit for payments made by other persons or entities,
and their amended answer on file in December 2021 pleaded their entitlement to a
dollar-for-dollar offset as an affirmative defense and asked that they be awarded
costs. Dakota Underground Contractors, Inc. asked the trial court to render a take-
nothing judgment and assess costs against the plaintiffs in its original answer, and it
filed a motion for no-evidence summary judgment. On November 20, 2020, the trial
court set the motion for summary judgment for submission on January 22, 2021.
Josey argues Unifund CCR Partners v. Villa supports their position that the
dismissal order was interlocutory. See 299 S.W.3d 92, 94-97 (Tex. 2009). In
Unifund, the defendant debtor filed a motion to impose sanctions on the plaintiff
creditor under Chapter 10 of the Civil Practice and Remedies Code for its failure to
make reasonable inquiry after it had knowledge of the debtor’s bankruptcy
discharge. Id. at 94. The creditor nonsuited its claims against the debtor. The trial
court signed an “ORDER OF DISMISSAL” that stated, “the above styled and
numbered cause be and is hereby dismissed with prejudice.” Several months later
the trial court signed “ORDER IMPOSING SANCTIONS AND FINAL
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JUDGMENT” that specified it was a final order intended by the court and the parties
to be final and appealable. Id. at 96-97. On direct appeal, the creditor argued the
sanctions order had been signed after the trial court’s plenary power expired. Id. at
95. Noting that the dismissal order did not mention the debtor’s pending motion for
sanctions, the Supreme Court rejected the creditor’s argument that the sanctions
order was void. Id. at 97.
Here, the trial court did not find that its December 2022 order had been
interlocutory. The trial court found the order was ineffective because the order was
signed in error as the result of a clerical or ministerial error of the court. A judgment
is final if “it actually disposes of every pending claim and party” or “it clearly and
unequivocally states that it finally disposes of all claims and all parties.” Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). The plain language of the
December 2021 order stated, “the above styled and numbered cause be dismissed
and same is hereby removed from the docket of this Court.” This language, which
followed a finding that the parties had failed to file a joint notice, clearly and
unequivocally dismissed the entire case, not just Josey’s claims against Dakota
Directional Drilling and Dakota Utility Contractors. In its order, the trial court also
instructed the parties regarding the action required for the trial court to reinstate the
case. The order may lack a basis in law, but “[e]rror is not the same as ambiguity.”
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In re Elizondo, 544 S.W.3d 824, 828 (Tex. 2018) (orig. proceeding). We conclude
the dismissal order operated as a final judgment.
Is the Dismissal Order Void?
Josey argues the December 2021 dismissal order is void because “no
procedural requirements upon which to ground a valid judicial act occurred.” They
claim the order is invalid because “it issued from pure fabrication and dropped out
of the sky without any judicial action by the trial court.” They argue the trial court
did not reinstate the case in May 2022, but issued a clarifying order because it
“recognized that without any further clarifying order, the order of December 23,
2021, might be construed by the parties to be something other than a random,
arbitrary, and capricious computer-generated document[.]”
A judgment is void only when the court rendering judgment had no
jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to
enter the judgment, or no capacity to act as a court. Browning v. Placke, 698 S.W.2d
362, 363 (Tex. 1985). All errors other than jurisdictional deficiencies render the
judgment merely voidable. Id. If the court had the authority to adjudicate a case, and
the court had jurisdiction over the parties and the subject matter, and the court did
not act outside its capacity as a court, the judgment is not void. Reiss v. Reiss, 118
S.W.3d 439, 443 (Tex. 2003). A dismissal for want of prosecution, even one that
was erroneously dismissed with prejudice, is merely voidable. El Paso Pipe and
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Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189, 190 (Tex. 1981). A
challenge to such a judgment must be timely made by direct attack, such as an appeal
or a bill of review. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012).
The trial court ruled that the December 2021 order was ineffective because it
was based on an erroneous premise that the parties had failed to timely meet their
Joint Notice Filing requirement. “But only errors made in entering a judgment are
clerical; an error in rendition is judicial.” In re Daredia, 317 S.W.3d 247, 249 (Tex.
2010) (original proceeding). “[E]rrors in rendered and entered judgments are not
clerical merely because they are based upon or grow out of clerical errors.” Finlay
v. Jones, 435 S.W.2d 136, 138 (Tex. 1968) (original proceeding). For instance, when
an attorney mistakenly inserts finality language in an order granting a motion for
partial summary judgment, the mistakenly inserted provision becomes a part of the
court’s judgment and therefore is a judicial error. Elizondo, 544 S.W.3d at 829.
In the May 2022 order, the trial court declared that the December 2021
dismissal order “was signed in error as the result of a clerical/ministerial error of the
court[.]” The trial court found that the April 2021 docket control order had been
superseded by the October 2021 docket control order, which set a new deadline for
the Joint Notice Filing. We defer to the trial court’s factual findings, which are
supported by the record, but we review de novo the trial court’s legal conclusions.
In re Facebook, Inc., 625 S.W.3d 80, 86 (Tex. 2021) (orig. proceeding). “A trial
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court has no ‘discretion’ in determining what the law is or applying the law to the
facts.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
Whether a trial court pronounced judgment and the terms of that pronouncement are
questions of fact but whether an error in a judgment is clerical or judicial is a
question of law. Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex. 1986). Whether
errors in a judgment are judicial or clerical is a question of law. Finlay, 435 S.W.2d
at 138.
A judgment may be rendered orally or in writing. Knox v. Long, 257 S.W.2d
289, 291 (Tex. 1953), overruled on other grounds by Jackson v. Hernandez, 285
S.W.2d 184, 264 (Tex. 1955). In Knox, the District Clerk prepared memoranda of
dismissal on the docket sheets for 182 cases. Knox, 257 S.W.2d at 292. The trial
court signed the docket sheets over the course of several days, then asked the clerk
if any of the cases were still active and should not be dismissed. Id. The clerk
identified two cases, including the Knox case, which were removed from the stack
and laid aside not to be dismissed before the trial court delivered the stack to the
clerk. Id. The trial court signed a blanket order dismissing for want of prosecution a
list of 181 cases that were identified by trial court cause number and the names of
the parties. Id. at 291. The District Clerk mistakenly included the Knox case on the
list of cases on the blanket order of dismissal. Id. The Supreme Court held that the
signed instrument was a memorial of what had occurred with the docket sheets and
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the inclusion of the Knox case was a clerical error in the entry of judgment and not
a judicial error in the rendition of judgment. Id. at 293. The Court reasoned that
when the judge satisfied himself that there was no further reason for
withholding judgment in the 180 cases and delivered the signed written
memoranda of dismissal in such cases to the clerk for such further
clerical action as was necessary to the recordation thereof he had
rendered judgment in such cases just as effectively as if he had made
an oral pronouncement of dismissal in each case separately in open
court. On the other hand, when the judge pulled the docket sheets of
cases out of the stack and laid them aside ‘not to be dismissed’ before
the stack was delivered to the clerk, he terminated the possibility that
the delivery of the sheets in those two cases would constitute the
rendition of judgment therein just as effectively as if he had run a line
through the entries on such sheets.
Id. at 292-93.
In Universal Underwriters Insurance Company v. Ferguson, the trial court
dismissed a list of cases for want of prosecution, including Stedman’s lawsuit against
Universal Underwriters. See 471 S.W.2d 28, 29 (Tex. 1971) (orig. proceeding).
More than thirty days after the trial court dismissed Stedman’s case, the trial court
signed an order purporting to reinstate the case on the court’s docket because the
trial court clerk had mistakenly mailed the dismissal docket notice to the defendant’s
lawyer and failed to mail a copy to the plaintiff’s lawyer. Id. The Supreme Court
conditionally granted mandamus relief. Id. at 31. Distinguishing Knox, the Court
noted that Stedman’s case had been included in the judgment rendered. Id. at 30.
Although the trial court would not have dismissed the case if it had known the true
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facts, dismissing the case was a judicial act that was not subject to correction after
the thirty day period specified in Rule 329b expired. Id. at 30.
This case is distinguishable from Knox for the same reason that case was
distinguished in Universal Underwriters. In Knox, the trial court determined as a
factual matter that he has not rendered judgment dismissing the Knox case for want
of prosecution. See 257 S.W.2d at 291. Here, the trial court found it did dismiss the
case, but that it did so under a mistaken belief that the parties had missed the deadline
for their Joint Notice Filing. That mistaken belief did not deprive the trial court of
the authority to adjudicate the case, to exercise jurisdiction over the parties and the
subject matter, or to act as a court.
Josey also argues the judgment is void because the court acted in a manner
inconsistent with due process. The trial court possessed inherent authority to dismiss
the case. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.
1999). Post-dismissal procedure may provide an adequate means of attacking an
erroneous dismissal for want of prosecution. See Alexander v. Lynda’s Boutique, 134
S.W.3d 845, 852 (Tex. 2004). Josey received notice that the dismissal order had been
signed and had an opportunity to file a motion to reinstate, a direct appeal, a
restricted appeal, or a bill of review. We conclude Josey failed to establish that the
December 2021 order is void on due process grounds.
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Did the Trial Court Act After Plenary Power Expired?
Relators argue the trial court lost its plenary power in January 2022, and its
subsequent orders, including the May 2022 order, are void. We agree. The trial court
had jurisdictional power over the case on the date the trial court signed the December
2021 dismissal order. Consequently, whether the order was void or voidable, in May
2022 a bill of review was the exclusive remedy through which the trial court could
grant relief. See Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985) (op. on reh’g).
We conclude the trial court abused its discretion by signing the May 2022 order
because on that date its plenary power over the case had already expired.
Conclusion
We conclude the trial court clearly abused its discretion by declaring the
dismissal order void after its plenary power expired and Relators lack an adequate
remedy at law. See Daredia, 317 S.W.3d at 250. We are confident that the trial court
will vacate its orders signed after January 24, 2022, including the May 20, 2022
order declaring the order of dismissal ineffective. The writ shall issue only if the trial
court fails to comply.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on May 31, 2023
Opinion Delivered June 1, 2023
Before Golemon, C.J., Johnson and Wright, JJ.
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