in Re Jerry D. Patchen, 01-16-00947-CV

Patchen obtained a default final judgment against Gallegos and Rodriguez on October 5, 2015; clerk mailed copies the same day.
Real Parties filed a motion for new trial on November 5, 2015 — 31 days after the final judgment was signed.
Judge Wood signed an order granting a new trial on January 8, 2016, 64 days after plenary power expired.
Patchen moved to vacate the new-trial order on November 4, 2016; the trial court declined to act, asserting only the visiting judge who signed the order could rule.
Patchen filed a mandamus petition asking this Court to compel the trial court to vacate the new-trial order (or to rule on his motion to vacate); this Court stayed the underlying trial pending resolution.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court had plenary power when Real Parties filed the motion for new trial	Patchen: the motion was untimely; plenary power expired Nov 4, 2015	Real Parties: implied consent or participation cured timing; they received notice	Held: Motion was filed after plenary power expired; new-trial order void
Whether the January 8, 2016 new-trial order is void for lack of jurisdiction	Patchen: order entered after plenary power lapsed, so void	Real Parties: Patchen waited ten months to challenge; therefore consent/waiver	Held: Lack of subject-matter/plenary jurisdiction cannot be waived; order void
Whether the trial court abused its discretion by refusing to rule on Patchen’s motion to vacate	Patchen: court refused to set hearing and declined to act without this Court’s mandate	Real Parties: Patchen failed to show refusal to act	Held: Record shows trial court refused to act; abuse of discretion established
Appropriate remedy — mandamus relief to vacate order or compel action	Patchen: mandamus appropriate because order is void; no adequate appellate remedy needed	Real Parties: contested factual/waiver defenses	Held: Mandamus conditionally granted; trial court ordered to vacate the new-trial order; writ to issue if court fails to comply

In re Sw. Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000) (mandamus appropriate to correct void orders)
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus standards; trial court abuses discretion if it fails to apply law)
State ex rel. Latty v. Owens, 907 S.W.2d 484 (Tex. 1995) (judicial action after expiration of jurisdiction is a nullity)
In re Flores, 111 S.W.3d 817 (Tex. App.—Houston [1st Dist.] 2003) (orig. proceeding) (void orders may be corrected by mandamus)
In re T.G., 68 S.W.3d 171 (Tex. App.—Houston [1st Dist.] 2002) (judicial action after plenary power expires is void)
In re Crawford & Co., 458 S.W.3d 920 (Tex. 2015) (subject-matter jurisdiction cannot be waived)
Grant v. Wood, 916 S.W.2d 42 (Tex. App.—Houston [1st Dist.] 1995) (orig. proceeding) (trial court abuses discretion when it refuses to hear and rule on pending motions)