Ferguson v. Naylor

• Decision Date: 30 April 1993
• Docket Number: No. 07-93-0008-CV,07-93-0008-CV
• Citation: 860 S.W.2d 123
• Parties: Jerrold FERGUSON, Appellant, v. Vickie NAYLOR, Appellee.
• Court: Texas Court of Appeals

Page 123

860 S.W.2d 123

Jerrold FERGUSON, Appellant, v. Vickie NAYLOR, Appellee.

No. 07-93-0008-CV.

Court of Appeals of Texas,

Amarillo.

April 30, 1993.

Order Denying Rehearing June 16, 1993.

Peterson, Farris, Doores & Jones, Marvin W. Jones, Amarillo, for appellant.

Nickum and Naylor, Richard C. Naylor, Amarillo, for appellee.

Before DODSON, BOYD and POFF, JJ.

BOYD, Justice.

Jerrold Ferguson ¹ brings this appeal from a September 18, 1992 default judgment. In the appeal he contends that a prior default judgment, rendered July 10, 1992, when he had no answer on file was vacated, and the entry of the September 18, 1992 judgment was made in error because he had an answer on file at the time it was entered. Agreeing, we reverse the judgment and remand the matter to the trial court for a trial on its merits.

A chronology of the pleadings and proceedings in the trial court is necessary to our disposition.

May 28, 1992: Vickie Naylor brought suit against Ferguson and his employer, Frank John Welnetz, to recover for property, physical and punitive damages, alleging the defendants were grossly negligent in connection with an automobile accident wherein Ferguson was driving his employer's truck when he collided with Naylor's car in March of 1992.

July 10, 1992: A default judgment was rendered against Ferguson and Welnetz, jointly and severally for $12,638.24 in property and physical damages, and against Welnetz for $50,000 in punitive damages. The judgment recited that a hearing was held on the "9th day of July, 1992," and the defendants "having been duly and legally cited to appear and answer, failed to appear and answer, and wholly made default."

August 7, 1992: Attorneys hired by Welnetz's insurance carrier, acting on behalf of Ferguson and Welnetz, filed general denials to Naylor's May 28 ² allegations.

August 7, 1992: Ferguson and Welnetz filed a motion for new trial alleging entry of the default judgment was one day premature since the returns of service were filed on June 29, and the hearing was held on July 9 in contravention of Rule 107, which provides that a default judgment is not proper unless the return of service has been "on file with the clerk of the court ten days, exclusive of August 10, 1992: Ferguson and Welnetz filed an amended motion for new trial alleging the default judgment was premature and their failure to answer was the result of an accident or mistake and not the result of conscious indifference, and they had meritorious defenses.

                the day of filing and the day of judgment."  Tex.R.Civ.P. 107. 3  The filing of this motion extended the court's plenary power over the judgment.  Tex.R.Civ.P. 329b(e)
                

August 24, 1992: Naylor filed a motion to have the court enter a nunc pro tunc judgment to correct the clerical error in the July 10 judgment reciting the hearing was held on July 9, when in truth, as supported by the court reporter's records, it was held on July 10.

September 16, 1992: Ferguson died.

September 16, 1992: Naylor filed her response to the amended motion for new trial, alleging the returns of service were on file the requisite amount of time, and the defendants failed to set up any excuse for their failure to file an answer.

September 18, 1992: Welnetz dismissed the counsel hired by his insurance carrier. His new attorney proceeded on his behalf to have the motion for new trial dismissed and discontinued. No further action was taken by the trial court on the amended motion for new trial. Welnetz is not a party to this appeal.

September 18, 1992: A default judgment entitled, "Judgment Nunc Pro Tunc" was entered against Ferguson and Welnetz. As pertinent, the judgment recited:

A clerical mistake was made in the Judgment previously signed and entered in this cause on July 10, 1992. The matter came on for hearing before this Court on July 10, 1992, was heard by the Court, determined by the Court and entered in the minutes of this Court on July 10, 1992 rather than on July 9, 1992 as indicated therein. Accordingly, said Judgment is vacated and the Court orders as follows:

The remainder of the judgment was identical to the July 10 judgment, including recitations of the defendants' failure to answer.

October 19, 1992: With the insurance carrier's approval, but without apparent approval from Ferguson's estate, new attorneys were substituted to represent Ferguson's interests.

October 19, 1992: Ferguson filed a motion to vacate the September 18 judgment or alternatively for a new trial, alleging defects in the service of citation and Naylor's statement of his last known address, and that the second judgment vacated the first judgment and, therefore, the second judgment was entered in error since Ferguson had an answer on file at the time it was entered on September 18.

October 26, 1992: Naylor filed a motion to have the newly appointed attorneys show their authority to act on behalf of Ferguson's estate.

November 6, 1992: Naylor filed her response to Ferguson's motion to vacate the judgment or alternatively for a new trial, alleging Ferguson's allegations of defects in the service were immaterial and did not defeat the default judgment. She further alleged that clerical errors can be corrected at any time to bring the recitations of the judgment into conformity with the true reflections of the record, and that the correction made did not defeat the default judgment.

November 6, 1992: A hearing was held before the trial court at which time the parties agreed to postpone any hearing on the motion to show authority pending the outcome of the motion for new trial. The trial court denied Ferguson's motion asking the court to vacate the judgment or, alternatively, to grant a new trial. No further action was taken on the motion to show authority.

December 16, 1992: Ferguson perfected his appeal to this court.

In his two-point attack on the September 18 default judgment, Ferguson contends the trial court erred in denying his motion to vacate the judgment, or alternatively for a new trial, because the trial court Naylor contends that the September 18 judgment relates back in all respects to the July 10 judgment because the trial court had an inherent power to correct the original judgment to bring its recitations into conformity with the record without having to grant Ferguson a new trial, despite the answer on file at the time the corrected judgment was entered. Thus, she maintains, the September 18 judgment corrected only that portion of the July 10 judgment not in conformity with the record. In so contending, Naylor relies heavily upon the holding of Perry v. Nueces County, 549 S.W.2d 239 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.), that a nunc pro tunc judgment does not disturb the initial judgment determined by the trial court, it merely brings the court's records into conformity with truth and justice. Id. at 242.

vacated the July 10 judgment and, thus, erred in entering the September 18 default judgment at a time when he had an answer on file. The issue presented is what, if any, relation back in time does the September 18 judgment have to the July 10 judgment as support for the entry of a default judgment.

We have no quarrel with this proposition, and agree that it is the right and duty of the court to ensure that its judgment conforms with the true state of the record. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 1083 (1926). Moreover, the power of the court to amend, correct, revise, supplement, open, or vacate his judgment is not deprived by the passage of time until the judgment becomes final. Tex.R.Civ.P. 329b(d); Campbell v. Hart, 256 S.W.2d 255, 257 (Tex.Civ.App.--Fort Worth 1953, writ ref'd n.r.e.).

We agree that a true nunc pro tunc correction of a clerical mistake will not defeat a default judgment and allow a defendant to allege an intervening answer. Miller v. Trice, 219 S.W. 229, 230 (Tex.Civ.App.--Dallas 1920, writ dism'd). However, in the present instance, the September 18 judgment was incorrectly denominated "Judgment Nunc Pro Tunc."

A true nunc pro tunc judgment is one correcting clerical errors executed after the trial court has lost plenary power. Ortiz v. O.J. Beck & Sons, Inc., 611 S.W.2d 860, 864 (Tex.Civ.App.--Corpus Christi 1980, no writ). Thus, the September 18 judgment was not a true judgment nunc pro tunc because it was granted while the trial court had plenary power to vacate, amend, or correct its judgment. Tex.R.Civ.P. 329b(e); see also Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex.1978); Go Leasing, Inc. v. Groos Nat. Bank, 628 S.W.2d 143, 144 (Tex.App.--San Antonio 1982, no writ).

In contending that the judgment can be corrected at any time to bring it into conformity with the true state of the record, and that such is a nunc pro tunc judgment, Naylor relies on Rule 316:

Clerical mistakes in the record of any judgment may be corrected by the judge in open court according to the truth or justice of the case after notice of the motion therefor has been given to the parties interested in such judgment, as provided in Rule 21a, and thereafter the execution shall conform to the judgment as amended.

Naylor has overlooked the stated distinction made between Rule 329b and Rule 316. Rule 329b provides:

The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 316)

* * * * * *

(d) The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.

Tex.R.Civ.P. 329b.

Nunc pro tunc entries are proper only to correct clerical mistakes found after the judgment has become final. Tex.R.Civ.P. 316; Ortiz v. O.J. Beck & Sons, Inc., 611 S.W.2d at 864. However, during the time it retains plenary power, the court can correct clerical and judicial mistakes as well as vacate or set...