Gomez v. Gomez, 1366

• Decision Date: 25 January 1979
• Docket Number: No. 1366,1366
• Citation: 577 S.W.2d 327
• Parties: Mrs. Manuela GOMEZ, Appellant, v. Gilberto GOMEZ et al., Appellees.
• Court: Texas Court of Appeals

Page 327

577 S.W.2d 327

Mrs. Manuela GOMEZ, Appellant, v. Gilberto GOMEZ et al., Appellees.

No. 1366.

Court of Civil Appeals of Texas, Corpus Christi.

Jan. 25, 1979.

William L. Morrow, Brownsville, for appellant.

Ernesto Flores, Jr., Paul Shinkawa, Melchor Chavez, Chavez & Barnard, Harlingen, for appellees.

OPINION

NYE, Chief Justice.

This is a suit to recover the balance due on a promissory note brought by Manuela Gomez against her former husband, Gilberto Gomez, and his mother, Maria Gomez, the maker of the note and guarantor of the note respectively. The trial judge entered a take nothing judgment. The plaintiff perfected her appeal to this Court from the trial court's adverse judgment. The trial judge subsequently filed separate findings of fact and conclusions of law which were contrary to and did not support the judgment. The primary issue before us, then, concerns the effect that these findings of fact should have on the previously entered judgment.

Gilberto Gomez, while married to but separated from the plaintiff, executed a promissory note in the principal sum of $3,111.35, payable to plaintiff in sixteen monthly installments commencing on August 1, 1976. After the final payment became past due, plaintiff brought suit, alleging that $2,700.00 of the principal amount remained due and unpaid. Defendants answered and alleged that the note had been executed without consideration.

This case was tried to the court without the intervention of a jury. Neither plaintiff nor defendants requested the services of a court reporter. At the close of the one day trial, the trial judge apparently requested the parties to submit briefs without making an oral pronouncement of his decision. Thereafter, the defendants prepared a proposed take nothing judgment which the trial judge signed and entered on February 22, 1978. The judgment had not been approved as to form by plaintiff.

The judgment stated, in relevant part, as follows:

"In the absence of application for trial by jury, the Court after presentation of testimony, evidence and argument of counsel, found that there was no consideration for the Note, subject matter of this suit. Based on such findings, the court is of the opinion that the judgment should be rendered in favor of defendants.

IT IS THEREFORE ADJUDGED; . . . (plaintiff take nothing) . . ."

The trial court's judgment contains no other recitations of fact. The appellate record contains "Proposed Findings of Fact and Conclusions of Law" filed by the defendants. Although these findings and conclusions support the judgment, the trial judge did not sign them.

The record indicates a copy of the trial court's judgment was sent to the defendants and to the plaintiff on the day before it was signed and entered. Forty days after the judgment was signed and entered, the trial court filed numerous findings of fact which are in direct conflict with the judgment. In summary, they are that: 1) defendant's employer accused defendant of taking, and demanded the return of, the sum of $3,111.35 which was missing from certain funds which were under the defendant's control in the course of his employment; 2) the plaintiff agreed she would pay the missing money to defendant's employer on behalf of defendant; 3) the employer then agreed not to press criminal charges against the defendant; 4) defendant agreed to reimburse plaintiff for such money paid to the employer; 5) defendant's mother agreed to guarantee such payment to plaintiff; 6) these agreements were evidenced by the March 26, 1976, promissory note executed by the defendants and a letter agreement acknowledging the debt executed by defendant; 7) plaintiff subsequently paid the total sum due to defendant's employer; and 8) defendant paid plaintiff a total of $411.35 of the principal amount of the note, leaving an overdue balance of $2,700.00 which had not been paid by either defendant. The trial judge also entered the following specific findings:

"12. The consideration of the Defendant Gilberto Gomez to pay $3,111.35 to Plaintiff Manuela Gomez was the agreement of Plaintiff Manuela Gomez to pay on his behalf the debt claimed by Valley Transit Company.

25. The judgment that was heretofore signed by the Court on February 22, 1978, was presented to the Court as though it were a default judgment and was signed by mistake."

Plaintiff's sole point of error on appeal is: The trial court mistakenly signed a judgment in favor of defendants when its findings of fact and conclusions of law were that judgment should be rendered in favor of plaintiff. Plaintiff's argument in support of this point is, in essence, that the trial court's separately filed findings and conclusions are controlling and, therefore, the trial court's judgment should be reversed and rendered to conform with them. All parties agree that the findings of fact and conclusions of law are in irreconcilable conflict with the trial court's judgment.

Defendants, however, contend that the judgment of the trial court should be affirmed because plaintiff waived her point of error by failing to file a motion for new trial. Defendant specifically argues that a motion for new trial was necessary in this case to apprise the trial judge of plaintiff's complaint which had not otherwise been ruled upon. Defendants' contention is without merit.

Rule 324 states that "it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled on." It is no longer necessary, in most instances, however, to file a motion for new trial as a prerequisite to the right to present a particular complaint on appeal. The basis for plaintiff's specific complaint did not become apparent until the trial court filed its findings of fact and conclusions of law ten days after the trial court's judgment became final. See Rule 329b(5). It would have been useless for plaintiff to file a motion for new trial at that time to complain that the trial court's findings of fact did not support the trial court's judgment because the trial court had no jurisdiction to grant such a motion or to correct, modify or otherwise change its judgment. See Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 (Tex.1974); Carrillo v. State, 480 S.W.2d 612 (Tex.1972).

Rule 307 provides that:

". . . any party claiming that the findings of the court . . . do not support the judgment, may have noted in the record an exception to said judgment and thereupon take an appeal . . . without a statement of facts or further exceptions in the transcript, but the transcript . . . shall contain the conclusions of law and fact . . . and the judgment rendered thereon."

Plaintiff excepted to the judgment when she timely perfected her appeal by filing an appeal bond pursuant to Rules 354 and 356. Although a notice of appeal is no longer required, the record also contains plaintiff's notice of appeal. We conclude that plaintiff has sufficiently perfected her sole point of error that the trial court's judgment is not supported by its findings of fact. See Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950); Loy v. Kuykendall, 347 S.W.2d 726 (Tex.Civ.App. San Antonio 1961, writ ref'd n. r. e.); Rules 307, 354 and 356, Texas Rules of Civil Procedure.

Defendants also contend that we are not authorized to consider the trial court's separately filed, conflicting findings of fact because they were not timely filed. Rule 297...