in Re: Gustavo Buentello, M.D., Daniel Buentello, R.N.D.C., and PA Rehab Management, LLC.

NUMBER 13-17-00427-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE GUSTAVO BUENTELLO, M.D., DANIEL BUENTELLO, R.N.D.C.,
AND PA REHAB MANAGEMENT, L.L.C.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Chief Justice Valdez1
By petition for writ of mandamus, Gustavo Buentello, M.D., Daniel Buentello,
R.N.D.C., and PA Rehab Management, L.L.C., contend that the trial court abused its
discretion in entering an order reinstating the underlying case after the loss of plenary
power. Relators also seek to stay the trial court proceedings pending resolution of this
original proceeding.
1 See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in
any other case,” but when “denying relief, the court may hand down an opinion but is not required to do
so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300,
302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a
clear abuse of discretion when there is no adequate remedy by appeal. In re Christus
Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator
bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., 492
S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
An abuse of discretion occurs when a trial court’s ruling is arbitrary and unreasonable or
is made without regard for guiding legal principles or supporting evidence. In re
Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford
Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of
an appellate remedy by balancing the benefits of mandamus review against the
detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).
However, when an order is void, “the relator need not show it did not have an adequate
appellate remedy, and mandamus relief is appropriate.” In re Sw. Bell Tel. Co., 35 S.W.3d
602, 605 (Tex. 2000).
On March 28, 2017, the trial court issued an order granting the relators’ motion to
dismiss the underlying case with prejudice. On April 11, 2017, the real party in interest,
Hilda Cano, filed a “Plaintiff’s Response to Defendant’s Motion to Dismiss” in which she
requested the trial court “to recall [the] Order of Dismissal.” In Cano’s response, she
argued that the accident at issue in the lawsuit did not arise from medical treatment, but
instead constituted a premises liability suit, and stated that because there “is no medical
treatment issue there is no requirement to designate experts.” She further “pray[ed] that
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this cause be reinstated on the trial docket and that the ORDER OF DISMISSAL be
recalled.” The record fails to contain the relators’ motion to dismiss.
A judgment that disposes of all parties and issues in a case is final and appealable.
Lehmann v. HarCon Corp., 39 S.W.3d 191 (Tex. 2001). The trial court retains plenary
power to grant a new trial or to vacate, modify, correct, or reform the judgment for thirty
days after the judgment is signed. TEX. R. CIV. P. 329b(d). The parties may extend that
plenary power by timely filing an appropriate post-judgment motion. Lane Bank Equip.
Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). If a timely motion for new
trial or motion to modify, correct, or reform the judgment is filed, the trial court’s plenary
power is extended until thirty days after all such timely-filed motions are overruled. TEX.
R. CIV. P. 329b(e), (g). An order signed after the court loses plenary power is void. In re
Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig. proceeding); In re J.P.L.,
359 S.W.3d 695, 705 (Tex. App.—San Antonio 2011, pet. denied).
The Texas Supreme Court has held that any “postjudgment motion that seeks a
substantive change in an existing judgment qualifies as a motion to modify under Rule
329b(g), thus extending the trial court’s plenary jurisdiction and the appellate timetable.”
Lane Bank Equip. Co., 10 S.W.3d at 314; see In re P.J.P.R., 508 S.W.3d 588, 590 (Tex.
App.—El Paso 2016, no pet.); Crotts v. Cole, 480 S.W.3d 99, 102–03 (Tex. App.—
Houston [14th Dist.] 2015, no pet.); DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex.
App.—Dallas 2008, no pet.). In this regard, we look to the substance of the relief sought
in a pleading rather than the formal style of the pleading or its form of title. In re J.Z.P.,
484 S.W.3d 924, 925 (Tex. 2016); Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664,
666 (Tex. 2011) (per curiam). Further, a “motion for new trial is conditionally filed if
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tendered without the requisite fee, and appellate deadlines run from and are extended by
that date.” Garza v. Garcia, 137 S.W.3d 36, 37–38 (Tex. 2004); see Ravani v. Vaught,
231 S.W.3d 568, 570 (Tex. App.—Dallas 2007, no pet.).
The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relators have not shown themselves entitled
to the relief sought. Accordingly, we DENY the petition for writ of mandamus and the
request for stay of the trial court proceedings. See TEX. R. APP. P. 52.8(a).
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
3rd day of August, 2017.
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