Gray v. Turner
| Decision Date | 14 March 1991 |
| Docket Number | No. 07-89-0352-CV,07-89-0352-CV |
| Citation | 807 S.W.2d 818 |
| Parties | Raymond M. GRAY, Appellant, v. John P. TURNER, Appellee. |
| Court | Texas Court of Appeals |
W. Briscoe Swan, Houston, for appellant.
Garner Stone & Lovell, John H. Lovell, Amarillo, for appellee.
Before DODSON, BOYD and POFF, JJ.
Appellant, Raymond M. Gray (Gray), seeks review of the Trial Court's order correcting the final judgment which was entered pursuant to appellee's, John P. Turner (Turner), motion to correct. After a hearing was held and testimony heard, the Trial Court found that the judgment entered in the cause deviated from the judgment rendered due to a clerical error. In one (1) point of error, Gray argues that the district court erred in modifying a final judgment nearly three (3) years after it was entered because the error in judgment if any, was judicial. Finding no error, we affirm.
Turner sold some shares of stock to Gray and Lewis M. Eslick (Eslick) in exchange for a $2,000,000.00 promissory note. Turner also obtained a letter of credit for $2,500,000.00 from Irving Savings Association (Irving) as security for the transaction. After Gray and Eslick defaulted on the note, Irving dishonored Turner's demand for payment on the letter of credit. Consequently, in Cause No. 65,613, Turner sued Gray, Eslick and Irving. [For clarity, Cause No. 65,613 will be styled the Irving case.]
During the pendency of the lawsuit, Turner filed a motion for sanctions against Gray for abuse of discovery which the Trial Court granted. On July 23, 1986, the Trial Court found that Gray failed to appear for depositions, failed to produce documents and failed to respond to Turner's request for admissions. Therefore, the court struck Gray's pleadings, ordered all allegations against Gray to be deemed admitted, and denied Gray the right to participate in the trial. On the same day, the Trial Court granted Turner's motion for summary judgment against Gray ruling that Turner was entitled to judgment as a matter of law. Turner moved for severance, which the Trial Court denied.
In August, 1986, a bench trial was held in the Irving case on the remaining causes of action. 1 The court took the evidence and arguments of counsel under advisement pending a later ruling. On October 24, 1986, the court granted Turner's second motion for severance regarding the summary judgment obtained against Gray. The severed action was given Cause No. 67,906, and it was ordered that separate judgments be entered in each cause. [For clarity, Cause No. 67,906 will be styled the Gray case.] On the same day, final judgment was entered in the Gray case. The Gray judgment states that Turner was entitled to $1,908,077.02 in damages, $157,000.00 in attorneys' fees, and $558,718.38 in prejudgment interest dated until September 22, 1986--totalling $2,623,795.40, plus costs. The Trial Court further ruled that the judgment would bear postjudgment interest from September 22, 1986. Other than this date, no other evidence points to the date on which judgment was rendered.
Within the text of the Gray final judgment, the court ruled:
... On October 24, 1986, the cause of action of Plaintiff, JOHN P. TURNER, against Defendant, RAYMOND M. GRAY, was severed from [the Irving case], and made the subject of a new proceeding in this cause. Any monies received by the Plaintiff in satisfaction of the Judgment in [the Gray case] shall be credited both to the Judgment in [the Gray case] and the Judgment entered in [the Irving case], in the 108th District Court of Potter County, Texas, against Defendants, IRVING SAVINGS ASSOCIATION and LEWIS M. ESLICK. Any monies received by the Plaintiff in satisfaction of the Judgment in [the Irving case], in the 108th District Court of Potter County, Texas, shall be the Judgment in [the Gray case] and the Judgment entered in [the Irving case].
On November 20, 1986, the court rendered and entered judgment in the Irving case, awarding Turner $2,537,915.81, over and against Irving plus postjudgment interest. From Eslick, Turner recovered $2,625,058.49, plus postjudgment interest and costs. Additionally, the judgment gave Irving recovery against Gray and Eslick up to the amount which Turner might recover from Irving, plus interest, attorneys' fees and costs. The court continued by stating:
... On October 24, 1986, the cause of action of Plaintiff John P. Turner against Defendant Raymond M. Gray was severed from this cause, [the Irving case], and made the subject of a new proceeding, [the Gray case], styled John P. Turner v. Raymond M. Gray in the 108th Judicial District Court of Potter County, Texas. Any recovery by the Plaintiff in [the Irving case] shall be credited both to this judgment and the judgment entered in [the Gray case]. Any recovery by the Plaintiff in [the Gray case], in the 108th District Court of Potter County, Texas, styled John P. Turner v. Raymond M. Gray, shall be credited both to this judgment and the judgment entered in [the Gray case].
On December 22, 1986, findings of fact and conclusions of law were filed by the Trial Court in the Irving case. The necessary implications of the findings of fact and conclusions of law are that Gray, Eslick and Irving were each joint and severally liable to Turner.
On March 17, 1987, an amended judgment was entered in the Irving case, which deleted the portion of the prior judgment in the cause regarding the amount owed by Irving to Turner. Substituted in place of the deletion was a paragraph explaining that Irving had settled with Turner for $900,000.00. Likewise, the portion of the prior judgment indicating Irving's entitled recovery against Gray and Eslick was appropriately amended. Also, Turner's recovery against Eslick was credited with $900,000.00. Again, the judgment contained the following cross-crediting clause:
... On October 24, 1986 [sic] the cause of action of Plaintiff John P. Turner against Defendant Raymond M. Gray was severed from [the Irving case], and made the subject of a new proceeding, [the Gray case], styled John P. Turner v. Raymond M. Gray in the 108th Judicial District Court of Potter County, Texas. Any recovery by the Plaintiff in [the Irving case] shall be credited to Lewis M. Eslick in this Judgment and to Raymond M. Gray in the Judgment entered in [the Gray case]. Any recovery by the plaintiff in [the Gray case], in the 108th District Court of Potter County, Texas, styled John P. Turner v. Raymond M. Gray, shall be credited to Lewis M. Eslick in this Judgment and to Raymond M. Gray in the judgment entered in [the Gray case].
Next, Turner filed a motion for correction of judgment in the Gray case on January 10, 1989. The motion indicated that due to a clerical error, two (2) words were left out of the final judgment entered in that cause on October 24, 1986. Turner sought to insert the words, "credited against," in the cross-crediting clause so that the final judgment would read:
Any monies received by the Plaintiff in satisfaction of the Judgment in [the Irving case], in the 108th District Court of Potter County, Texas, shall be credited against the Judgment in [the Gray case] and the Judgment entered in [the Irving case].
Instead of:
Any monies received by the Plaintiff in satisfaction of the Judgment in [the Irving case], in the 108th District Court of Potter County, Texas, shall be the Judgment in [the Gray case] and the Judgment entered in [the Irving case].
Upon hearing the motion to correct judgment, the Trial Court received evidence from the judge who heard the case at trial, Turner, and his attorney. Also received into evidence were orders and judgments of the court, the judge's docket sheets, the findings of fact and conclusions of law, and the order of dismissal from the bankruptcy court. We find all of these to have been properly considered by the court. Pruet v. Coastal States Trading, Inc., 715 S.W.2d 702, 705 (Tex.App.--Houston [1st Dist.] 1986, no writ ).
The judge testified that he originally refused to sever the summary judgment against Gray and the remaining causes of action because of the complications concerning the cross-crediting. However, he agreed to sever the summary judgment after the trial of the remaining causes of action because each party's position in regard to the cross-crediting had been determined. Continuing, the judge iterated that the deletion of two (2) words from the document "kept the judgment from being what I intended." In response to further cross examination by appellant, the judge testified that while he read the judgment prior to signing it, he failed to "catch the omission." Later, the judge stated that the words "credited to" needed to be added, as proposed to the judgment in the Gray case in order "to make it consistent with everything we had done," and that such an addition would not change his ruling in the case.
Appellant objected to the Trial Court's consideration of any of the documents relating to the Irving case arguing that they were irrelevant to the Gray case. In support of his argument, appellant relates that nothing within the file of the Gray case evidences the judge's intended judgment in that cause. It is obvious that liability on the entire case, which resulted in two (2) separate final judgments, revolves around the cross-crediting language that appears in all of the judgments. The cross-crediting clauses in each of the judgments state that any recovery is to apply to the judgments in "both" causes. Since the judgments in each cause incorporate the other, we find that the instant controversy need not be considered in a vacuum as appellant suggests.
Appellant objected that the judge's personal recollection that the judgment as entered failed to accurately record the judgment as rendered, was not competent evidence and violated the best evidence rule. Appellant argued that there must be something in writing in the record before the judge is allowed to...
To continue reading
Request your trial
-
In the Interest of K.R.
...may be conclusively shown by wholly circumstantial evidence if such evidence is reasonably "satisfactory and convincing"); Gray v. Turner, 807 S.W.2d 818, 822-23 (Tex. App.-Amarillo 1991, no writ) (judgment nunc pro tunc must be supported by "clear and convincing" evidence that the court's ......
-
Safeway Managing General Agency for State and County Mut. Fire Ins. Co. v. Cooper, 07-96-0333-CV
...of Kidd, 812 S.W.2d at 360, or where the possibility of reversal was so improbable as to defy a reasonable belief of success, Gray v. Turner, 807 S.W.2d 818, 824 (Tex.App.--Amarillo 1991, no writ). An additional factor to be considered in the determination whether the appeal is brought for ......
-
America's Favorite Chicken Co. v. Galvan, 04-94-00713-CV
...is always judicial error, which may not be corrected by a nunc pro tunc judgment. Comet Aluminum, 450 S.W.2d at 58-59; Gray v. Turner, 807 S.W.2d 818, 822 n. 2 (Tex.App.--Amarillo 1991, no writ). Such an error may only be corrected by appeal, writ of error or bill of review. Comet Aluminum,......
-
Vela v. Vela
...error in the judgment was judicial or clerical. "In doing so, we must look only to the judgment that was actually rendered." Gray v. Turner, 807 S.W.2d 818, 823 (Tex. App.—Amarillo 1991, no pet.) (citing Coleman v. Zapp,151 S.W. 1040, 1041 (Tex.)). Here, the rendered and intended judgment o......