Barre Morris v. Victoria Barrientes O'Neal
464 S.W.3d 801
Tex. App.2015Background
- Parties mediated a settlement in Aug. 2011; trial court signed an "original final order" on Nov. 7, 2011 modifying custody/possession.
- In Feb. 2012, appellee O’Neal moved for a judgment nunc pro tunc asserting the original order omitted long-distance access terms central to the mediated agreement.
- Trial court signed a judgment nunc pro tunc on Apr. 12, 2012 that added the long-distance access terms but omitted some other terms from the original final order.
- In Apr. 2013, appellant Morris filed a verified bill of review attaching the nunc pro tunc and alleging it was void because it corrected a judicial (not clerical) error after plenary power expired; he claimed lack of notice and no fault.
- The trial court denied the bill of review (letter then order); the record contains bench briefs but no reporter’s record of a hearing and Morris did not submit the original final order into evidence before the trial court.
- On appeal the court considered whether Morris preserved procedural complaints, whether he presented prima facie proof of a meritorious ground for appeal, and whether the nunc pro tunc was conclusively void.
Issues
| Issue | Morris's Argument | O’Neal's Argument | Held |
|---|---|---|---|
| Trial court erred by denying evidentiary hearing and opportunity to amend | Morris: trial court should have held an evidentiary hearing or allowed amendment before denying bill of review | O’Neal: Morris did not timely raise procedural objections in trial court; no record of such requests | Court: Error not preserved; Morris waived (overruled) |
| Did Morris present prima facie proof of a meritorious ground for appeal (that nunc pro tunc was void)? | Morris: Nunc pro tunc was void because it corrected a judicial error after plenary power expired; attached the nunc pro tunc to his petition | O’Neal: Morris failed to present the original final order or other admissible evidence to show differences or timing; attorney assertions/pleadings are not evidence | Court: Morris failed to make prima facie showing; trial court did not err in denying bill of review (overruled) |
| Is the nunc pro tunc void on its face (collateral attack)? | Morris: The order is void and should be set aside regardless of bill-of-review prerequisites | O’Neal: Record does not conclusively show the nunc pro tunc corrected a judicial error; docket entry suggests possible prior rendition; judgment presumed valid | Court: Record does not conclusively show the nunc pro tunc is void; unresolved factual question whether there was a prior rendition—Morris failed burden (overruled) |
| Distinction clerical vs. judicial error; timing/plenary power | Morris: The changes reflect judicial correction after plenary power so void | O’Neal: Even after plenary power, court may correct clerical mistakes via nunc pro tunc; absence of evidence of prior rendition prevents deeming corrections judicial | Court: Legal theory viable, but petitioner must prove facts; here factual record insufficient to classify error as judicial rather than clerical (held for O’Neal) |
Key Cases Cited
- Caldwell v. Barnes, 154 S.W.3d 93 (Tex. 2004) (bill of review elements and relief from default-judgment rules)
- Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979) (prima facie proof requirement and two-step bill-of-review inquiry)
- Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986) (nunc pro tunc may correct clerical but not judicial errors after plenary power)
- Rawlins v. Rawlins, 324 S.W.3d 852 (Tex. App.—Houston [14th Dist.] 2010) (distinction between clerical and judicial error; voidness after plenary power)
- Garza v. Texas Alcoholic Beverage Comm’n, 89 S.W.3d 1 (Tex. 2002) (when a judgment is ‘‘rendered’’ — oral announcement, memorandum, or public declaration)
- Petro-Chemical Transp., Inc. v. Carroll, 514 S.W.2d 240 (Tex. 1974) (bill of review should plead errors with particularity and introduce the underlying transcript where necessary)