National Unity Ins. Co. v. Johnson

• Decision Date: 24 July 1996
• Docket Number: No. 04-96-00484-CV,04-96-00484-CV
• Citation: 926 S.W.2d 818
• Parties: NATIONAL UNITY INSURANCE COMPANY, Relator, v. Honorable Timothy JOHNSON, Respondent.
• Court: Texas Court of Appeals

Page 818

926 S.W.2d 818

NATIONAL UNITY INSURANCE COMPANY, Relator, v. Honorable Timothy JOHNSON, Respondent.

No. 04-96-00484-CV.

Court of Appeals of Texas,

San Antonio.

July 24, 1996.

Thomas E. Quirk, Law Offices of Thomas E. Quirk, San Antonio, for Relator.

James V. Mazuca, Law Offices of James V. Mazuca, San Antonio, Bret L. Walton, Frank Rivas & Associates, San Antonio, for Respondent.

Before CHAPA, C.J., and STONE and GREEN, JJ.

PER CURIAM.

National Unity Insurance Company (hereinafter National Unity) brings this petition for writ of mandamus asserting that the Honorable Timothy Johnson abused his discretion by granting a nunc pro tunc judgment partially setting aside a prior judgment of dismissal. We agree that Judge Johnson abused his discretion and that National Unity has no adequate remedy at law.

Real party in interest Narciso Gallegos sued National Unity and State Farm Mutual Automobile Insurance Company for damages resulting from a collision with an uninsured motorist. On March 25, 1996, Judge Shay Gebhardt signed a judgment stating that the parties had settled all matters in controversy On May 6, 1996, Gallegos filed a motion to correct, reform, or modify the judgment. Gallegos asserted that the judgment contained errors due to "the mistake and inadvertence of defendant's counsel." Gallegos stated that he dismissed National Unity by mistake and that he only meant to dismiss State Farm. Judge Johnson held a non-evidentiary hearing and, on May 9, 1996, signed a "Judgment Nunc Pro Tunc" correcting the judgment to dismiss only State Farm.

and ordering that Gallegos take nothing from National Unity and State Farm. This judgment was approved by attorneys for all parties.

ABUSE OF DISCRETION

The original judgment was signed on March 25, 1996. Because no motion for new trial was filed, the trial court's plenary jurisdiction expired on April 24, 1996. Gallegos' motion to correct, reform, or modify the judgment was filed on May 6, 1996, after the expiration of the court's plenary power. Thus, if the second judgment corrects a judicial error rather than a clerical error, it is void. See Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986) (after court loses jurisdiction, it can correct only clerical errors).

To determine whether the error at issue is judicial or clerical, we must examine whether the original judgment properly reflected what the trial court rendered.

A judicial error is an error which occurs in the rendering as opposed to the entering of a judgment. When deciding whether a correction is of a judicial or a clerical error, we look to the judgment actually rendered, not the judgment that should or might have been rendered. The court can only correct the entry of a final written judgment that incorrectly states the judgment actually rendered. Thus, even if the court renders incorrectly, it cannot alter a written judgment which precisely reflects the incorrect rendition.

Escobar, 711 S.W.2d at 231 (emphasis in original; citations omitted).

Gallegos contends that because there were no findings of fact or conclusions of law requested or filed, this court "must affirm the judgment nunc pro tunc if it can be sustained on any reasonable theory supported by the evidence and authorized by law." See Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977), overruled on other grounds, Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768, 770 (Tex.1989). In the circumstances of this case, no findings of fact or conclusions of law are required. The only authority in law for a judgment nunc pro tunc is to correct a clerical error. Whether an error is judicial or clerical is a question of law. Escobar, 711 S.W.2d at 232. Before making this legal determination, though, it must be determined whether the court previously pronounced judgment and the terms of the pronouncement. These are questions of fact. Id.

Judge Johnson could make the legal conclusion that the error to be corrected was a clerical error only after he made a factual finding that Judge Gebhardt rendered a take-nothing judgment only in favor of State Farm. There is, however, a complete lack of evidence to support such a finding. It is undisputed that Gallegos offered no evidence to Judge Johnson to prove that Judge Gebhardt rendered any judgment other than that contained in the written judgment. Indeed, it appears that the parties simply presented Judge Gebhardt with the written judgment and she signed it without any type of hearing or discussion. In these circumstances, the rendition of judgment is reflected in the writing. See Dikeman v. Snell, 490 S.W.2d 183, 184 (Tex.1973) (orig. proceeding; judgment rendered in writing); America's Favorite Chicken Co. v. Galvan, 897 S.W.2d 874, 878 (Tex.App.--San Antonio 1995, writ denied) (signing of judgment constituted rendition). As in Dikeman, "[t]here is no contention that [the judge] had earlier orally rendered or pronounced a different judgment." Dikeman, 490 S.W.2d at 184.

The basis stated in Gallegos' motion for obtaining a nunc pro tunc judgment is that the original judgment contains an error due to the mistake of a defense attorney. The supreme court has rejected this excuse:

A judgment is usually prepared by the attorney for the successful party, as was done here. When rendered in writing and Id. at 186 (citation omitted); see also America's Favorite Chicken Co., 897 S.W.2d at 879.

thus signed and entered it becomes the judgment of the court. Recitations or provisions alleged to have been inserted by mistake of the attorney nevertheless become a part of the court's judgment and therefore are judicial errors when thus rendered in writing by the court.

Gallegos now argues that the language of the judgment reflects that Judge Gebhardt "intended" to render judgment in accordance with the parties' settlement agreement and that the settlement agreement did not provide for dismissal of claims against National Unity. This argument must fail for a number of reasons. First, the question is not what the trial judge "intended" to render, but what the judge "actually" rendered. See Escobar, 711 S.W.2d at 231 (look to judgment actually rendered); America's Favorite Chicken Co., 897 S.W.2d at 877 ("critical inquiry must be on what judgment was actually rendered"). If the judge intends to render one thing but actually renders another, the resultant error is judicial, not clerical. See Escobar, 711 S.W.2d at 231.

Second, Gallegos conceded at oral argument that he did not present evidence of the settlement agreement to Judge Johnson. Indeed, it appears that no evidence at all was presented to Judge Johnson other than the original judgment and an attorney's admission that his secretary included National Unity in the take-nothing judgment by mistake. In the absence of some evidence of the parties' settlement agreement, Judge Johnson could not have concluded that the original judgment dismissing both National Unity and State Farm was not in conformity with that agreement. Thus, the statement in the judgment that the court is "of the opinion that Judgment should be entered in conformity with such agreement" constitutes no evidence that Judge Gebhardt rendered any judgment other than that reflected in writing.

Finally, there is an abundance of language in the original judgment indicating that both National Unity and State Farm were to be dismissed. The judgment recites that all parties "announced to the court that all matters in controversy had been compromised and settled" and that an agreement had been reached "by and between all parties that a Take-Nothing Judgment should be entered." (Emphasis added.) The judgment further recites that the court had considered "the agreements entered hereto by and between all parties." (Emphasis added.) It concludes with a recitation that "[a]ll relief sought and not expressly provided for herein is DENIED." Gallegos has not complained, either before Judge Johnson or in this court, that any of this language was included by mistake. He complained only of the decretal...