Alford v. Whaley

• Decision Date: 09 August 1990
• Docket Number: No. 01-89-01251-CV,01-89-01251-CV
• Citation: 794 S.W.2d 920
• Parties: Chris ALFORD and Tyson Alford, Appellants, v. John WHALEY, Kathline Whaley, Michelle Whaley, and Patrick Whaley, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 920

794 S.W.2d 920

Chris ALFORD and Tyson Alford, Appellants, v. John WHALEY, Kathline Whaley, Michelle Whaley, and Patrick Whaley, Appellees.

No. 01-89-01251-CV.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 9, 1990.

Jaime A. Drabek, Barbara O. Hachenburg, Hirsch, Glover, Robinson & Sheiness, A.P.C., Houston, for appellants.

David D. Williams, Houston, for appellees.

Before SAM BASS, HUGHES and O'CONNOR, JJ.

OPINION

SAM BASS, Justice.

This is an appeal from a judgment rendered in favor of appellees, the Whaleys, for damages sustained in an automobile collision. The trial court awarded $25,000 in attorney's fees and an additional $15,000 in the event of an unsuccessful appeal to Patricia Saum, the guardian ad litem of Patrick Whaley, a minor. Appellants do not contest the reasonableness of the $15,000 fee.

The judgment is reformed, and affirmed as reformed.

In their first point of error, appellants argue that the trial court abused its discretion in awarding $25,000 to the guardian ad litem, Patricia Saum, because the evidence was factually insufficient. In their second point of error, appellants argue that Ms. Saum's affidavit does not support the award, because the hours worked multiplied by Saum's hourly rate is less than the amount actually awarded.

Before addressing appellants' points of error, this Court must determine whether appellants complied with Tex.R.App.P. 53, by making their request for a partial statement of facts, and later serving all attorneys of record with a statement of points to be relied upon for appeal. If appellants complied with rule 53, they obtained the benefit of the presumption that nothing omitted from the record is relevant to the disposition of the appeal. Tex.R.App.P. 53(d). If appellants did not comply with the rule, then the judgment will be affirmed, because this Court may not find reversible error in the absence of a complete record of the case before us. Christiansen v. Prezelski, 782 S.W.2d 842, 842 (Tex.1990).

The record reflects that the final judgment, awarding $25,000 in attorney's fees for the trial of the case to Ms. Saum, and $15,000 "[i]n the event of an appeal," was signed August 21, 1989. On September 7, 1989, appellants requested the court reporter to include only the "hearing on Plaintiff's Motion to Tax Guardian Ad Litem Fees" in the statement of facts. On September 12, 1989, appellants filed a motion for partial new trial that contested the $25,000 award of attorney's fees. On October 6, 1989, the court signed a judgment nunc pro tunc that provided for an award of $15,000 to Ms. Saum, "[i]n the event of an unsuccessful appeal." (Emphasis added.) On November 17, 1989, appellants filed a cost bond, stating their intention to appeal that portion of the judgment awarding $25,000 in attorney's fees to Ms. Saum. Finally, appellants filed a statement of points to be relied upon for appeal. Although the designation of points of error was not file-marked, the certificate of service indicates that copies were forwarded to all counsel of record on December 20, 1989.

We must determine whether the original final judgment or the judgment nunc pro tunc began the running of the appellate timetable. In civil cases, when clerical mistakes in a judgment are corrected by a judgment nunc pro tunc after the expiration of the court's plenary power, the time periods prescribed for filing the various documents in connection with the appeal, "shall run from the date of signing the corrected judgment with respect to any complaint that would not be applicable to the original judgment." Tex.R.App.P. 5(b)(1) & (c) (emphasis added).

However, this provision presupposes that the judgment nunc pro tunc, which purported to correct a clerical error in the original judgment, was in fact a judgment nunc pro tunc. It is well settled that a judicial error cannot be corrected by a judgment nunc pro tunc. Mathes v. Kelton, 569 S.W.2d 876, 877 (Tex.1978); Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973).

A judicial error is one that occurs in rendering a judgment. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986); see also Mathes, 569 S.W.2d at 878 (changing the name of the party entitled to possession of a ring materially altered the substance of the original judgment and was the correction of a judicial error, which cannot be accomplished by a judgment nunc pro tunc); Finlay v. Jones, 435 S.W.2d 136, 138-39 (Tex.1968) (erroneous recitations in original judgment, that the defendant (1) had been duly served with citation, and (2) had not appeared and not filed an answer, were judicial errors); Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 593-96, 90 S.W.2d 819, 820-21 (Tex.Comm'n App.1936, opinion adopted) (unintended judgment of dismissal was a judicial error, even though case was inadvertently placed on the list of cases to be dismissed for want of prosecution).

A clerical error is a mistake or omission that prevents the judgment as entered from accurately reflecting the judgment that was rendered, Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex.1971), i.e., a mistake in entering or recording the judgment. Escobar, 711 S.W.2d at 231-32 (discrepancy in the acreage description of land).

In determining whether a correction is of a judicial or clerical error, we look to the judgment actually rendered, not the judgment that should or might have been rendered. Escobar, 711 S.W.2d at 231. A judgment nunc pro tunc can only be used to correct the entry of a final written judgment that incorrectly states the judgment actually rendered. Id. at 231-32. Thus, even if a court renders a judgment incorrectly, it cannot alter a written judgment that precisely reflects the incorrect rendition by means of a judgment nunc pro tunc. Id. at 232.

At the hearing on the motion to tax guardian ad litem fees, the trial judge stated that Ms. Saum would receive $15,000 in attorney's fees "[i]n the event of an appeal." We find nothing in the record to indicate that the original judgment, which contained the same unconditional award of appellate attorney's fees, incorrectly stated the judgment actually rendered. Accordingly, we hold that the change from "[i]n the event of an appeal," in the original judgment, to "[i]n the event of an unsuccessful appeal," contained in the judgment nunc pro tunc, was the correction of a judicial error that cannot be accomplished by a judgment nunc pro tunc.

Although the October 6, 1989, judgment is labelled a "judgment nunc pro tunc," that language does not limit the trial court's power to alter in any way its judgment in this case. See Mathes, 569 S.W.2d at 878 n. 1. Because a motion for new trial was timely filed by appellants, the trial court had plenary power to modify, correct, or reform the judgment until 30 days after the motion was overruled. See id. at 878; Tex.R.Civ.P. 329b(e). The judgment nunc pro tunc was entered October 6, 1989, only 24 days after September 12, 1989, when the motion for new trial was filed. Therefore, the trial court had jurisdiction to correct its judgment.

If a judgment is corrected, modified, or reformed "in any respect," the time for appeal begins to run from the date the corrected judgment is signed. Clark v. McFerrin, 760 S.W.2d 822, 825 (Tex.App.--Corpus Christi 1988, writ denied); Tex.R.Civ.P. 329b(h). ¹ Accordingly, the time periods for filing the various documents in connection with perfecting the appeal ran from the date of the signing of the judgment nunc pro tunc, on October 6, 1989.

An appeal is perfected by filing a cost bond, affidavit, or cash deposit within 90 days from the signing of the judgment when a motion for new trial is filed. Clark, 760 S.W.2d at 824; Tex.R.App.P. 41(a)(1). A motion for new trial, filed before a corrected judgment is entered, extends the time for filing the appeal bond until 90 days after the date the corrected judgment is entered, as long as the substance of the motion is such as could properly be raised with respect to the corrected judgment. Clark, 760 S.W.2d at 825; Miller v. Hernandez, 708 S.W.2d 25, 26-27 (Tex.App.--Dallas 1986, no writ); see also Tex.R.App.P. 58; Tex.R.Civ.P. 306c. The motion for new trial complained about the award of $25,000 in trial attorney's fees contained in the original judgment, a matter which could properly be raised with respect to the judgment nunc pro tunc. Accordingly, appellants had until January 4, 1990, to perfect their appeal.

Rule 53(a) of the Texas Rules of Appellate Procedure provides that the appellant shall make a written request for the statement of facts to the official reporter, at or before the time for perfecting the appeal. In order to obtain the benefit of the presumption that "nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal," an appellant who requests a partial statement of facts shall also include a statement of the points to be relied upon for appeal in the request. Tex.R.App.P. 53(d). Appellants' request for a partial statement of facts, dated September 7, 1989, was before the time for perfecting the appeal. Although appellants did not include a statement of points to be relied upon for appeal in that request, they later served such a statement upon all attorneys of record, on December 20, 1989, well within the time for perfecting the appeal. Although the statement of points to be relied upon for appeal is not file-marked, it appears in the transcript, along with the request to the court reporter, which is file-marked. We hold that an appellant, who timely requests a partial statement of facts in writing from the official reporter, and who later serves all parties with a statement of points to be relied upon for appeal in a separate writing within the time for perfecting the appeal, obtains the benefit of the presumption that nothing omitted from the record is relevant to any of the points specified or to the disposition of...