Hernandez v. Lopez , No. 01-06-00901-CV (Tex. App. 8/28/2008)
| Decision Date | 28 August 2008 |
| Docket Number | No. 01-06-00901-CV.,01-06-00901-CV. |
| Parties | GEORGE HERNANDEZ, Appellant, v. MARIA GUADALUPE LOPEZ (HERNANDEZ) AND THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Appellees. |
| Court | Texas Court of Appeals |
On Appeal from the 311th District Court, Harris County, Texas, Trial Court Cause No. 1991-42738.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
Appellant, George Hernandez, appeals from a judgment nunc pro tunc granted in favor of appellee, the Office of the Attorney General of Texas ("the OAG"), in which the trial court modified the arrearage in a child support enforcement order.
In what we construe as one issue, George contends that the trial court erred by granting the OAG's motion for judgment nunc pro tunc because the evidence is insufficient to support the trial court's implied finding that the agreed order contained a clerical error.
We vacate the judgment nunc pro tunc.
On May 16, 1986, a child, C.L.H., was born to George and appellee, Maria Guadalupe Lopez (formerly, Hernandez). In 1992, George was ordered to begin paying $260 in monthly child support for C.L.H. Thereafter, George failed to make certain child support payments.
On January 21, 2004, a child-support enforcement hearing was held before a master. There is not a record of that hearing before us in this appeal. However, the record shows that George, Maria, and the OAG signed an "Agreed Order Enforcing Child Support Obligation" ("Agreed Order").
The Agreed Order contains a judgment on arrears, which states, "The Court FINDS and CONFIRMS that [George] is in arrears in the amount of $51,000.00 as of December 31, 2004." (Bold emphasis added.) On January 27, 2004, the trial court signed an order adopting the master's report and the Agreed Order. There is not a record of any hearing at the time the trial court signed the order before us in this appeal.
Over two years later, on April 11, 2006, the OAG filed a motion for judgment nunc pro tunc, alleging that the Agreed Order contained a clerical error in the date that the arrearage was confirmed. Specifically, the OAG alleged that the date of December 31, 2004 stated in the Agreed Order should have been December 31, 2003. In addition, the OAG filed a "Motion to Confirm Child Support Arrearage," alleging that George had failed to pay the sum in arrears. The OAG appended to its motion an accounting statement from the OAG stating that appellant owed $51,000 as of December 31, 2003.
On August 22, 2006, a hearing was held on the motion for judgment nunc pro tunc. The OAG presented the testimony of Maria as its evidence that the date of December 31, 2004 had been incorrectly entered. Maria testified, as follows, in relevant part:
Q. Did you approach the judge with the Attorney General and your ex?
A. I believe so, yes, sir.
Q. Okay. And did you-all recite your agreement into the record?
A. Yes, sir.
Q. And was it agreed upon and stipulated on the record that the arrears as of December 31st, 2003 were $ 51,000?
A. Yes, sir.
Q. Was there any testimony on the record—Was there any testimony that the agreement was 2004?
A. No, sir.
On cross-examination, Maria testified that she could not recall the name of the judge or of any of the attorneys involved.
George, who appeared through his counsel, objected to the entry of judgment nunc pro tunc, contending that the requested change of date constituted a substantive change outside the trial court's plenary period. Specifically, George contended that the change of date would result in an extra year of interest and would vitiate the parties agreement that the arrearage be confirmed at $51,000 as of December 31, 2004.
At the close of the hearing, the trial court granted the OAG's motion for judgment nunc pro tunc, ordering that the date of the confirmation of arrearage be changed from December 31, 2004 to December 31, 2003. The trial court explained the basis for its determination as follows:
The court can observe that I have yet to see a Motion for Nunc Pro Tunc that didn't make a substantive change to the Order. So, I've never found the supposed distinction between clerical and substantive errors to be any help to the Trial Court in determining these issues. They always make some change that affects the substance of the Order. Presumably, nobody would be down here requesting nunc pro tuncs if they didn't; but I think it is permissible for the court to assume that the underlying court would not enter a judgment it had no authority to enter. And given the testimony, the Court is comfortable granting the motion.
This appeal ensued.
As a threshold issue, the OAG contends that we do not have jurisdiction to consider this appeal because George's notice of appeal was untimely filed. Specifically, the OAG contends that, because the judgment nunc pro tunc was signed on August 22, 2006, George's notice of appeal was due by September 21, 2006. George filed his notice of appeal on September 22, 2006, however, and did not file a motion for extension of time.
With exceptions not applicable herein, a notice of appeal must be filed within 30 days after the date the judgment is signed. See Tex. R. App. P. 26.1. An appellate court may extend the time to file the notice of appeal, if, within 15 days after the deadline for filing the notice of appeal, the party files in the trial court the notice of appeal and files in the appellate court a motion complying with rule 10.5(b). Id. 26.3. Rule 10.5(b) requires that a motion for extension of time to file a notice of appeal include, inter alia, "the facts relied on to reasonably explain the need for an extension." Id. 10.5(b)(2).
An extension of time is implied when an appellant, acting in good faith, files a notice of appeal beyond the time permitted by Rule 26.1, but before the expiration of the 15-day period in Rule 26.3. See Hone v. Hanafin, 104 S.W.3d 884, 885-86 (Tex. 2003) (applying Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)); Coronado v. Farming Tech., Inc., 994 S.W.2d 901, 901 (Tex. App.-Houston [1st Dist.] 1999, no pet.). However, rule 10.5 still requires that an appellant offer a reasonable explanation for her failure to timely file a notice of appeal. Tex. R. App. P. 10.5(b)(2);see Hone, 104 S.W.3d at 886; Verburgt, 959 S.W.2d at 617.
Here, the record shows that the judgment nunc pro tunc was signed on August 22, 2006 and therefore George's notice of appeal was due by September 21, 2006. George's notice of appeal, filed on September 22, 2006, was beyond the time permitted by Rule 26.1, but was before the expiration of the 15-day period in Rule 26.3. Because George has also filed a factual explanation indicating that he, in good faith, believed that he filed on time and had inadvertently miscalculated the dates, we imply an extension of time, and we conclude that George's notice of appeal was timely filed. See Hone, 104 S.W.3d at 885-86; Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (). Hence, our jurisdiction over this appeal is established, and we turn to the merits of the appeal.
George contends that the trial court erred by granting the OAG's motion for judgment nunc pro tunc because the evidence is insufficient to support the trial court's implied finding that the agreed order contained a clerical error. Specifically, appellant contends that changing the date confirming appellant's arrearage created an increase in his obligation to pay and therefore constituted a substantive change. Appellant contends that the trial court was without plenary power to make a substantive change to the judgment.
Pursuant to Rule 329b(d) of the Texas Rules of Civil Procedure, the trial court has plenary power for 30 days after a judgment is signed to grant a new trial or to vacate, modify, correct, or reform the judgment. Tex. R. Civ. P. 329b(d). Once the trial court's plenary power expires, it cannot set its judgment aside except by a bill of review for sufficient cause. Tex. R. Civ. P. 329b(f). However, the trial court may at any time correct a clerical error in the judgment by entering a judgment nunc pro tunc. Tex. R. Civ. P. 316; 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986); Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex. App.-Houston [1st Dist.] 2005, no pet.).
A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered, and does not arise from judicial reasoning or determination. Barton, 178 S.W.3d at 126 (citingAndrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986)). A judicial error, on the other hand, occurs in the rendering, as opposed to the entering, of a judgment. Escobar, 711 S.W.2d at 231. It arises from a mistake of law or fact that requires judicial reasoning to correct. Butler. v. Cont'l Airlines, Inc., 31 S.W.3d 642, 647 (Tex. App.-Houston [1st Dist.] 2000, pet. denied).
When deciding whether an error is clerical or judicial, the court must look to the judgment actually rendered and not to the judgment that should or might have been rendered. Escobar, 711 S.W.2d at 231. The trial court can only correct the entry of a final written judgment that incorrectly states the judgment actually rendered. Id. at 231-32. Even if the trial court incorrectly rendered judgment, it cannot alter a written judgment that precisely reflects the incorrect rendition. Id. at 232. A judgment rendered to correct a judicial error after plenary power has expired is void. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973); Barton, 178 S.W.3d at 126.
Whether an error is judicial or clerical is a...
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