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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 MontgomeryCounty, 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 OFCIVIL 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’slawyersent 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 orderwhich 

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 casewas 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 DirectionalDrilling, 

Inc. and Dakota UtilityContractors, 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 takenothing judgment and assess costs against the plaintiffsin 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, themistakenly 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 

errorsin 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 occurredwith 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, includingStedman’slawsuit 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 dismissalfor 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

BeforeGolemon, C.J., Johnson and Wright, JJ.