Opinion
NUMBERS 13-22-00116-CV, 13-23-00382-CV
08-22-2023
21ST CENTURY CENTENNIAL INSURANCE COMPANY, Appellant, v. Jonathan RAMIREZ, Appellee.
ATTORNEYS OF RECORD FOR THE RELATOR: Angela M. Hahn, Scot G. Doyen, Doyen Sebesta & Poelma LLLC, 16945 Northchase Dr., Ste. 1400, Houston, TX 77060-2142 ATTORNEY OF RECORD FOR THE REAL PARTY IN INTEREST: Jeffrey D. Small, Attorney at Law, 12451 Starcrest Dr., Suite 100, San Antonio, TX 78216-2988
ATTORNEYS OF RECORD FOR THE RELATOR: Angela M. Hahn, Scot G. Doyen, Doyen Sebesta & Poelma LLLC, 16945 Northchase Dr., Ste. 1400, Houston, TX 77060-2142
ATTORNEY OF RECORD FOR THE REAL PARTY IN INTEREST: Jeffrey D. Small, Attorney at Law, 12451 Starcrest Dr., Suite 100, San Antonio, TX 78216-2988
Before Chief Justice Contreras and Justices Silva and Peña
OPINION
Opinion by Justice Silva 21st Century Centennial Insurance Company (21st Century) filed a notice of appeal in our cause number 13-22-00116-CV seeking to reverse an order granting a bill of review rendered in favor of Jonathan Ramirez. In the alternative, 21st Century requested that its appeal be treated as a petition for writ of mandamus. We dismiss the appeal, grant 21st Century's request to treat the appeal as an original proceeding filed in our cause number 13-23-00382-CV, and conditionally grant the petition for writ of mandamus.
I. BACKGROUND
This case arises from an automobile accident between Ramirez, who was insured by 21st Century, and Erica Bertero, who is not a party to this proceeding. On June 22, 2015, Ramirez filed suit against 21st Century on grounds that 21st Century refused to pay him underinsured motorist benefits that he was due under his insurance policy. Ramirez also raised claims against 21st Century for fraud, unfair insurance practices, and other extracontractual causes of action. On September 16, 2015, the trial court entered an agreed order granting 21st Century's motion to sever and abate Ramirez's extracontractual claims into a separate lawsuit.
This case arises from trial court cause number 2020CCV-61189-4 in the County Court at Law No. 4 of Nueces County, Texas, and the respondent is the Honorable Mark H. Woerner. See Tex. R. App. P. 52.2.
In the original case, the parties stipulated to liability and the matter was submitted to a jury trial on the issue of damages only. The jury found in favor of Ramirez, and on September 12, 2018, the trial court signed a final judgment based on the jury's verdict. 21st Century paid Ramirez the damages awarded. The parties then began litigating Ramirez's extracontractual claims in the severed case. 21st Century filed a traditional motion for summary judgment arguing that there was no evidence that it breached the insurance policy or that its actions had caused Ramirez to suffer any independent injuries. Ramirez filed a response to 21st Century's motion for summary judgment, and in the alternative, a motion to continue the hearing on the motion for summary judgment. The trial court held a hearing on these matters, and on October 1, 2019, the trial court signed an order granting 21st Century's motion for traditional summary judgment. The trial court's order provides that it is a final judgment, disposes of all claims, and is appealable.
Ramirez filed a motion for rehearing and reconsideration of the order granting summary judgment. On October 3, 2019, the trial court held a hearing on Ramirez's motion. At the hearing, Ramirez contended that his bad faith and extracontractual causes of action survived 21st Century's payment of his contractual damages but asserted that he needed additional discovery to investigate his claims more fully. At the conclusion of the hearing, the trial court announced he was "going to vacate the order," and directed the parties to "get that discovery done." On October 28, 2019, Ramirez filed a proposed order granting his motion for rehearing and reconsideration. However, the trial court did not sign the order. The parties proceeded with discovery, filed a joint agreed motion for continuance of a trial date, and amended their pleadings. On July 24, 2020, 21st Century's counsel informed Ramirez's attorneys that 21st Century was preparing to reargue its motion for summary judgment when it discovered that the trial court never signed an order granting Ramirez's motion for rehearing and reconsideration. 21st Century therefore took the position that the trial court's plenary power had expired.
The trial court's plenary power typically expires thirty days after the court signs a final judgment. Hall v. Lewis , 639 S.W.3d 197, 203–04 (Tex. App.—Houston [1st Dist.] 2021, no pet.) ; Wells Fargo Bank, N.A. v. Erickson , 267 S.W.3d 139, 148 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.). If a litigant timely files a motion for new trial or other appropriate post-judgment motion seeking a change in the judgment, the trial court has plenary power to grant a new trial "until thirty days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first." Tex. R. Civ. P. 329b(e). If the trial court does not rule on a timely filed motion by written order within seventy-five days after the judgment was signed, the motion "shall be considered overruled by operation of law on expiration of that period." Id. R. 329b(c). When the motion is overruled by operation of law, the trial court retains plenary power for an additional thirty days, i.e., until the expiration of 105 days after the judgment was signed. Id. R. 329b(e), (g) ; Hall , 639 S.W.3d at 203–04 ; Wells Fargo Bank , 267 S.W.3d at 149 ; Martin v. Tex. Dep't of Family & Protective Servs. , 176 S.W.3d 390, 392 (Tex. App.—Houston [1st Dist.] 2004, no pet.) ; see alsoLane Bank Equip. Co. v. Smith S. Equip., Inc. , 10 S.W.3d 308, 310 (Tex. 2000). Here the final judgment was signed on October 1, 2019, and Ramirez filed a timely motion for rehearing or reconsideration. The trial court's plenary jurisdiction expired, at the latest, 105 days later on January 14, 2020. The order granting reconsideration was not signed until July 28, 2020.
On July 28, 2020, the trial court signed an order granting Ramirez's motion for rehearing and reconsideration of appellant's summary judgment motion.
On August 25, 2020, Ramirez filed a petition for bill of review. He asserted that the trial court still possessed jurisdiction over the case concerning his extracontractual cause of action and that he was filing the petition for bill of review "only out of an abundance of caution." The trial court held a bench trial on the bill of review. Following the trial, on March 8, 2022, the trial court signed an order granting Ramirez's petition for bill of review and vacating the October 1, 2019 summary judgment order.
This appeal ensued. By two issues, 21st Century contends that the trial court abused its discretion by granting the bill of review because: (1) Ramirez failed to offer any evidence of a meritorious defense; and (2) there is no evidence that fraud, accident, or any wrongful act of 21st Century, unmixed with fault or negligence by Ramirez, prevented Ramirez from making a meritorious defense. In contrast, Ramirez asserts that the trial court's order granting a bill of review was "interlocutory and not appealable," and if appealable, was supported by the law and the facts.
The Clerk of this Court advised 21st Century that it appeared that the order subject to appeal was not a final, appealable order, and requested 21st Century to correct this defect if possible. See TEX. R. APP. P. 42.3(a). In response, 21st Century filed a letter brief asserting that the order was subject to appeal, but alternatively requesting that its appeal be treated as a petition for writ of mandamus if the Court were to conclude that we lacked jurisdiction over the appeal. Ramirez filed a response in opposition to 21st Century's request to treat the appeal as an original proceeding. Ramirez contends that this case fails to meet the appropriate criteria to be handled as a petition for writ of mandamus and asserts, inter alia , that this case is not "exceptional" and that 21st Century has an adequate remedy by appeal.
21st Century also filed a motion for leave to file its letter brief. We grant 21st Century's motion for leave to file the letter brief.
II. APPEAL
We first address whether the order granting the bill of review is subject to review by appeal. "A bill of review which sets aside a prior judgment but does not dispose of all the issues of the case on the merits is interlocutory in nature and not a final judgment appealable to the court of appeals or the supreme court." Kiefer v. Touris , 197 S.W.3d 300, 302 (Tex. 2006) (per curiam) (quoting Tesoro Petroleum v. Smith , 796 S.W.2d 705, 705 (Tex. 1990) (per curiam) ); seeIn re D.N.C. , 656 S.W.3d 764, 766 (Tex. App.—El Paso 2022, no pet.) ; In re Estrada , 492 S.W.3d 42, 46 (Tex. App.—Corpus Christi–Edinburg 2016, orig. proceeding). Here, the trial court's order granting Ramirez's bill of review set aside the prior summary judgment but did not dispose of the case on the merits. Accordingly, we lack jurisdiction over the appeal. SeeKiefer , 197 S.W.3d at 302 ; Tesoro Petroleum , 796 S.W.2d at 705.
We turn our attention to 21st Century's request to treat its appeal as a petition for writ of mandamus. In certain circumstances, a court may treat an appeal as a petition for writ of mandamus. SeeCMH Homes v. Perez , 340 S.W.3d 444, 452–54 (Tex. 2011). This promotes judicial economy because requiring the appellant to file a separate petition for writ of mandamus would "unnecessarily waste the parties' time and further judicial resources." Id. at 453 ; seeIcon Benefit Adm'rs II, L.P. v. Mullin , 405 S.W.3d 257, 263 (Tex. App.—Dallas 2013, orig. proceeding [mand. denied]). In order to obtain mandamus review in such a situation, the appellant must specifically request that its appeal be treated as a mandamus petition. Sintim v. Larson , 489 S.W.3d 551, 556 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ; In re Estate of Aguilar , 435 S.W.3d 831, 834 (Tex. App.—San Antonio 2014, no pet.) ; In re Adams , 416 S.W.3d 556, 560 (Tex. App.—Tyler 2013, orig. proceeding), subsequent proceeding , No. 12-12-00242-CV, 2013 WL 4106703, at *1 (Tex. App.—Tyler Aug. 14, 2013, orig. proceeding) (per curiam).
After fully reviewing the appeal, 21st Century's express request to treat its appeal as a petition for writ of mandamus, and Ramirez's response, we conclude that the interests of justice and judicial economy militate in favor of granting 21st Century's request. SeeCMH Homes , 340 S.W.3d at 452–54. Accordingly, we grant 21st Century's request to treat its appeal as a petition for writ of mandamus. Having done so, we dismiss the appeal for want of jurisdiction.
III. MANDAMUS
Mandamus is an extraordinary and discretionary remedy. SeeIn re Allstate Indem. Co. , 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding) ; In re Garza , 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam) ; In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re USAA Gen. Indem. Co. , 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding) ; In re Prudential Ins. Co. of Am. , 148 S.W.3d at 135–36 ; Walker v. Packer , 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Acad., Ltd. , 625 S.W.3d 19, 32 (Tex. 2021) (orig. proceeding) ; In re Essex Ins. , 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam) ; In re Prudential Ins. Co. of Am. , 148 S.W.3d at 136. Because this balance depends heavily on circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc. , 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). Thus, depending on the circumstances, mandamus may be available to review an order granting a bill of review. SeeIn re Miramontes , 648 S.W.3d 590, 599–600 (Tex. App.—El Paso 2022, orig. proceeding) ; In re Estrada , 492 S.W.3d at 49.
IV. BILL OF REVIEW
A bill of review is an independent equitable proceeding filed by a party seeking to set aside a judgment that is no longer subject to challenge by a motion for new trial or appeal. WWLC Inv., L.P. v. Miraki , 624 S.W.3d 796, 799 (Tex. 2021) (per curiam) ; seeKing Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003). A plaintiff in a bill of review must ordinarily plead and prove: (1) a meritorious defense to the underlying cause of action; (2) which the plaintiff was prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake; (3) unmixed with any fault or negligence on his or her own part. WWLC Inv., L.P. , 624 S.W.3d at 799 ; seeCaldwell v. Barnes , 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). The plaintiff bears the burden of proof to establish these elements. SeeKing Ranch, Inc. , 118 S.W.3d at 752.
"[B]ills of review exist to provide a failsafe against manifest injustice and the wrongful deprivation of a litigant's right to trial and appeal in extraordinary circumstances." Bowers v. Bowers , 510 S.W.3d 571, 577 (Tex. App.—El Paso 2016, no pet.). However, courts do not readily grant bills of review "[b]ecause it is fundamentally important in the administration of justice that some finality be accorded to judgments." Valdez v. Hollenbeck , 465 S.W.3d 217, 226 (Tex. 2015) (quoting Alexander v. Hagedorn , 148 Tex. 565, 226 S.W.2d 996, 998 (1950) ).
V. ANALYSIS
As stated previously, 21st Century argues that the trial court abused its discretion by granting the bill of review because Ramirez failed to offer any evidence of a meritorious defense and there is no evidence that fraud, accident, or any wrongful act by 21st Century, unmixed with fault or negligence by Ramirez, prevented Ramirez from making a meritorious defense. In contrast, Ramirez contends that the trial court retained jurisdiction because the signed order granting Ramirez's motion for rehearing and reconsideration "related back to the time of rendition and, thus, the bill of review was unnecessary." Ramirez also contends that he had a meritorious defense which he was prevented from presenting by an "official mistake" and he was not negligent in these events.
A. Nunc Pro Tunc
We first address Ramirez's claim that the trial court's July 28, 2020 written order granting rehearing and reconsideration of its summary judgment related back to its oral rendition of the order. Ramirez thus alleges that the trial court retained jurisdiction because the signing of the order constituted a nunc pro tunc correction of a clerical error. Ramirez argues that "the trial court implicitly acknowledged that its failure to sign the reconsideration order was error by immediately signing it when it was discovered it had not been signed previously."
With a nunc pro tunc judgment, "[a] trial court may correct clerical errors in a judgment even after its plenary power has expired," however, "it must correct judicial errors within thirty days of judgment or not at all." In re Elizondo , 544 S.W.3d 824, 829 (Tex. 2018) (orig. proceeding) (per curiam) ; seeEscobar v. Escobar , 711 S.W.2d 230, 231 (Tex. 1986). Errors made in entering a judgment are clerical, and errors in the rendition of a judgment are judicial. SeeIn re Elizondo , 544 S.W.3d at 829. "A clerical error is one which does not result from judicial reasoning or determination." Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC , 397 S.W.3d 162, 167 (Tex. 2013) (quoting Andrews v. Koch , 702 S.W.2d 584, 585 (Tex. 1986) (per curiam) ). A purported nunc pro tunc judgment entered after the trial court loses plenary jurisdiction is void if it corrects judicial rather than clerical errors. Tex. Dep't of Transp. , 397 S.W.3d at 167. An appropriate nunc pro tunc judgment relates back to the date of the original judgment and is effective as of the earlier date. Daniels v. Comm'n for Law.Discipline , 142 S.W.3d 565, 573 (Tex. App.—Texarkana 2004, no pet.).
In support of his contention that the trial court retained jurisdiction to sign the July 28, 2020 new trial order as a clerical correction, Ramirez cites Willow Vista Estates Homeowners Ass'n, Inc. v. Haight , No. 02-12-00432-CV, 2013 WL 4506821, at *1–3 (Tex. App.—Fort Worth Aug. 22, 2013, no pet.) (mem. op.). In that case, a homeowners association (HOA) sued a homeowner for failing to pay its assessments. Id. at *1. The HOA sought damages and foreclosure. Id. After the homeowner failed to appear or answer, the trial court announced that it intended to grant the HOA a default judgment on damages, but not the right to foreclose, and requested the HOA to set another hearing on foreclosure. Id. The HOA submitted a proposed interlocutory judgment including the amount of its damages, but the trial court "inadvertently failed to sign" the interlocutory default judgment. Id. The homeowner again failed to appear at the subsequent hearing, and the trial court granted a default judgment which allowed the HOA to foreclose, but the written final judgment did not include the amount of damages awarded, even though the damages had been included in the interlocutory default judgment that the trial court failed to sign. Id. The HOA thereafter filed a motion for nunc pro tunc judgment which the trial court refused to grant on grounds that it had lost plenary power over the case. Id. The HOA appealed and argued that the omission in the judgment was a clerical error that could be corrected after the expiration of plenary power. Id. The Fort Worth Court of Appeals agreed, holding that the judgment's failure to include the amount of the HOA's damages was a clerical error that could be corrected after the expiration of plenary power. Seeid. at *1–2.
We generally agree with Ramirez's legal contentions regarding the effect of nunc pro tunc judgments which correct clerical errors, and we agree with the disposition in Haight. However, we conclude that this doctrine is inapplicable here, where the trial court's oral ruling was made on a motion for rehearing and reconsideration of a final judgment. An order granting a new trial or modifying, correcting, or reforming a judgment must be in writing and signed. In re Lovito-Nelson , 278 S.W.3d 773, 775 (Tex. 2009) (orig. proceeding) (per curiam) ; see TEX. R. CIV. P. 329b(c). A trial judge's oral pronouncement granting a motion for new trial or motion to modify, reform, or correct a judgment cannot substitute for a written order. SeeIn re Lovito-Nelson , 278 S.W.3d at 775 (collecting cases); Clark & Co. v. Giles , 639 S.W.2d 449, 450 (Tex. 1982) (orig. proceeding) (per curiam) ; In re Estate of Brazda , 582 S.W.3d 717, 732 (Tex. App.—Houston [1st Dist.] 2019, orig. proceeding). This rule holds true even if the trial court makes a docket notation regarding the oral ruling or issues a scheduling order setting the case for trial. SeeIn re Lovito-Nelson , 278 S.W.3d at 775 ; Estate of Townes v. Wood , 934 S.W.2d 806, 808 (Tex. App.—Houston [1st Dist.] 1996, orig. proceeding).
The Texas Supreme Court has considered the application of these tenets in a case that is similar to the one at hand. SeeFaulkner v. Culver , 851 S.W.2d 187, 188–89 (Tex. 1993) (orig. proceeding) (per curiam). In Faulkner , the trial court granted a take-nothing summary judgment in favor of the defendant. Id. at 188. The plaintiffs filed a motion for rehearing of the summary judgment, or alternatively, for a new trial. Id. The trial court "orally vacated the summary judgment ... and made a[n] entry on the docket sheet to this effect." Id. However, the trial court "did not vacate the summary judgment by written order until" approximately ten months after the motion for rehearing was originally filed. Id. The supreme court held that the "oral pronouncement and docket entry vacating the summary judgment could not be substituted for a written order required by Rule 329b." Id. Accordingly, since the trial court did not sign a written order within the required time, the motion for rehearing or new trial was overruled by operation of law. Id. "The judgment became final 30 days later and the trial judge lost jurisdiction over the case." Id. The court thus conditionally granted the petition for writ of mandamus. Id. at 189. In a footnote, the court noted that the disposition of the case did "not necessarily foreclose other remedies available to the parties." Id. at 188 n.2 (first citing Hanks v. Rosser , 378 S.W.2d 31, 35 (Tex. 1964) ; and then citing Rund v. Trans East, Inc. , 824 S.W.2d 713, 717 (Tex. App.—Houston [1st Dist.] 1992, writ denied) ).
Further, in a previous case, the supreme court considered and rejected the specific argument that Ramirez makes here. SeeTaack v. McFall , 661 S.W.2d 923, 923–24 (Tex. 1983) (orig. proceeding) (per curiam). In Taack , the trial court rendered a default divorce decree, and the defendant timely filed a motion for new trial. Id. at 923. The trial court orally granted the motion for new trial and noted his action on the docket sheet. Id. The trial court subsequently signed temporary orders in the case. Id. More than four months after the trial court orally granted the new trial and eight months after the divorce decree was signed, the trial court rendered a purported nunc pro tunc judgment vacating the divorce decree and granting the new trial. Id. The plaintiff filed a petition for writ of mandamus to compel the judge to vacate the order granting a new trial. Id. The defendant argued that this was a judgment nunc pro tunc correcting a clerical error, but the supreme court soundly rejected this contention. Id. "We hold that the failure to follow the express requirements of Rule 329b(c) is not a clerical error." Id. at 924.
Based on the foregoing, we reject Ramirez's contention that the trial court's "nunc pro tunc" judgment related back to its oral order granting reconsideration. SeeFaulkner , 851 S.W.2d at 188 ; Taack , 661 S.W.2d at 923–24 ; see alsoIn re Bates , 429 S.W.3d 47, 50–52 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (concluding that a written order granting a new trial was void when signed after the expiration of plenary power even though the trial court orally granted the motion for new trial and issued a docket control order setting the case for trial during its period of plenary power); Perdue v. Patten Corp. , 142 S.W.3d 596, 601–03 (Tex. App.—Austin 2004, no pet.) (collecting and discussing cases). Accordingly, we proceed to review whether Ramirez met the requirements to obtain relief by bill of review.
B. Official Mistake
In its second issue, which we consider dispositive, 21st Century contends that Ramirez is not entitled to a bill of review because there is no evidence that fraud, accident, or any wrongful act by 21st Century, unmixed with fault or negligence by Ramirez, prevented Ramirez from making a meritorious defense. In this regard, 21st Century notes that Ramirez does not allege that it committed a fraud, accident, or wrongful act. In contrast, Ramirez contends that the doctrine of official mistake applies because the clerk did not send out the required Rule 306a notice that the summary judgment had been signed, and there was a "disconnect between the clerk's office and the trial court" concerning signing the order granting a new trial. See TEX. R. CIV. P. 306a. Ramirez argues that:
The trial court's erroneous failure to sign the order granting Ramirez's motion for reconsideration was an oversight between the clerk's office and the court amounting to official mistake unmixed with any fault on Ramirez's part. The inadvertent disconnect between the clerk's office and the trial court caused the order effectuating what the trial court had orally rendered to fall through the cracks.
A bill of review plaintiff need not prove fraud, accident, or the wrongful act of the opposing party when the plaintiff demonstrates that the judgment resulted from official mistake. Transworld Fin. Servs. Corp. v. Briscoe , 722 S.W.2d 407, 407 (Tex. 1987) ; Baker v. Goldsmith , 582 S.W.2d 404, 407 (Tex. 1979) ; Mowbray v. Avery , 76 S.W.3d 663, 683–84 (Tex. App.—Corpus Christi–Edinburg 2002, pet. denied). An "official mistake" for bill of review purposes occurs when the judgment in the underlying case resulted from the bill of review plaintiff's "reliance on a court officer who improperly execute[d the court officer's] official duties." Transworld Fin. Servs. Corp. , 722 S.W.2d at 408 ; seeMarathon Petroleum Co. LP v. Cherry Moving Co. , 550 S.W.3d 791, 804 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Stated otherwise, "[a]n official mistake occurs when a court official commits error in the discharge of his official duties, and that error prevents the complainant from presenting his defense in the former action or from challenging the judgment by post-judgment actions or appeal." Perdue , 142 S.W.3d at 604–05 ; seeBaker , 582 S.W.2d at 407 ; Mowbray , 76 S.W.3d at 683 ; Rund , 824 S.W.2d at 718–19. The official mistake doctrine has been narrowly construed, and general misconduct or wrongdoing by court functionaries is insufficient to satisfy the required showing for a bill of review. SeePerdue , 142 S.W.3d at 604–05 ; Mowbray , 76 S.W.3d at 683.
Ramirez appears to contend that "official mistake" occurred here in two respects. First, Ramirez contends that the clerk failed to provide notice of the final judgment. We agree that the failure of a clerk to send notice of a judgment can constitute official mistake. See, e.g.,Petro-Chem. Transp., Inc. v. Carroll , 514 S.W.2d 240, 244–45 (Tex. 1974) (holding that a defendant was deprived of the opportunity to file a motion for new trial due to the failure of a clerk to send the required notice of the signing of the judgment); Flores v. Flores , 116 S.W.3d 870, 875 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) ("In granting summary judgment, the trial court found that [the plaintiff] established official mistake as a matter of law, ‘which was the failure of the district clerk to send notice of the judgment to [the plaintiff] or his counsel.’ "); see alsoTummel v. Roadrunner Transp. Sys., Inc. , No. 13-16-00335-CV, 2018 WL 1545573, at *7 (Tex. App.—Corpus Christi–Edinburg Mar. 29, 2018, pet. denied) (mem. op.). However, whether or not Ramirez received notice from the clerk regarding the signed summary judgment, Ramirez was clearly not prevented from filing a motion for rehearing and reconsideration. Baker , 582 S.W.2d at 407 ; Perdue , 142 S.W.3d at 604–05 ; Mowbray , 76 S.W.3d at 683. Accordingly, the doctrine of official mistake does not apply in these circumstances.
We turn our attention to Ramirez's second contention that official mistake occurred when the trial court "inadvertently" failed to sign the order granting a new trial. In deciding a case where "the trial judge erroneously signed an order setting a hearing date when he actually meant to sign an order granting a new trial," the Fourteenth District Court of Appeals held:
The type of official mistake to which the Supreme Court referred is the type of mistake, made by an officer of the court, which, due to the defendant's reliance thereon, results in defendant's failure to answer or appear for trial. Nothing in the language of any of these cases suggests that this doctrine should be extended to an instance where the trial judge fails to sign an order granting a new trial which is then overruled by operation of law. Harsh as this rule may seem at first blush, it is not this Court's [prerogative] to change it.
Cortland Line Co. v. Israel , 874 S.W.2d 178, 183–84 (Tex. App.—Houston [14th Dist.] 1994, writ denied), disapproved of on other grounds byIn re Timberlake , 501 S.W.3d 105 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding) ; see alsoLeggett & Platt, Inc. v. Buckley , No. 05-99-01504-CV, 2001 WL 13623, at *1 (Tex. App.—Dallas Jan. 8, 2001, pet. denied) (mem. op.) ("We agree with the Houston Fourteenth Court of Appeals [in Cortland ] that nothing in the cases discussing the official mistake doctrine suggests that this doctrine should be extended to an instance where a trial judge fails to sign an order granting a new trial which is then overruled by operation of law."). Similarly, in Cloud v. Thornton , the appellants filed a motion for new trial that was orally granted at the hearing on the motion but was not signed until after the expiration of plenary power. 627 S.W.2d 432, 433 (Tex. App.—Houston [1st Dist.] 1981, writ dism'd). The court noted that "[t]he appellants' only excuse for not appealing was they were [misled] into believing the case was still pending in the trial court by that court's continuing to conduct hearings and sign orders through July 21," and held that "those activities by the trial court do not excuse the appellants' failure to appeal." Id. at 434. The court also held that
the appellants failed to show that the prior judgment was rendered as the result of fraud, accident or wrongful act of the opposite party or that they were prevented from filing a motion for new trial as a result of reliance on erroneous official information from a court official, unmixed with any fault or negligence of their own.
Id. at 434–35. Finally, the court determined that the appellants were not free from fault or negligence in failing to secure a new trial insofar as they failed to ensure that the trial court was timely furnished with an order granting a new trial. Id. at 435.
We conclude that the record here does not show that Ramirez was prevented from presenting a meritorious defense to the underlying cause of action by official mistake. WWLC Inv., L.P. , 624 S.W.3d at 799. As explained by the courts in Cortland Line and Cloud , the failure of a trial court to timely sign a written new trial order—after previously having orally granted a new trial—is not the sort of "official mistake" for which bill of review relief is available. SeeCortland Line Co. , 874 S.W.2d at 183–84 ; Cloud , 627 S.W.2d at 433 ; see alsoLeggett & Platt, Inc. , 2001 WL 13623, at *1. Accordingly, we conclude that the trial court abused its discretion in granting the bill of review.
C. Adequacy of a Remedy by Appeal
We turn our attention to the adequacy of an appeal following a final judgment in this case. Review by mandamus would prevent wasting the time and money that would be spent on allowing fatally flawed proceedings to proceed through trial and appeal. See In re Essex Ins. , 450 S.W.3d at 528. Further, "[t]he act of proceeding to trial based on an improperly granted bill of review defeats the fundamental public policy favoring the finality of judgments." In re Estrada , 492 S.W.3d at 51–52. Considering the particular facts and circumstances of this case and avoiding a "rigid rule" that is "inconsistent with the flexibility" of mandamus review, we conclude that 21st Century lacks an adequate remedy by appeal. In re Prudential Ins. Co. of Am. , 148 S.W.3d at 136. We sustain 21st Century's second issue. Having done so, we need not address its remaining issue. See TEX. R. APP. P. 47.4.
VI. CONCLUSION
We have determined that, in the interests of justice and judicial economy, this appeal should be treated as a petition for writ of mandamus. Having done so, we dismiss the appeal in cause number 13-22-00116-CV for want of jurisdiction. We conditionally grant the petition for writ of mandamus in cause number 13-23-00382-CV, and we direct the trial court to vacate its order granting the bill of review and to proceed in accordance with this opinion. Our writ will issue only if the trial court fails to promptly comply.