Nolan v. Bettis

Decision Date08 February 1978
Docket NumberNo. 12624,12624
PartiesAnn Joy Bettis NOLAN, Appellant, v. James Jay BETTIS et al., Appellees.
CourtTexas Court of Appeals

Robert L. Templeton, Templeton & Garner, Amarillo, for appellant.

Milton L. Bankston, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellees.

SHANNON, Justice.

Appellees, James Jay Bettis, individually and as independent executor of the estate of James W. Bettis, Jr., and his brother, Douglas Dewey Bettis, sued appellant, Ann Joy Bettis Nolan, their stepmother, and four local attorneys. Appellees' suit sought damages and an order canceling a trustee's deed to appellant of three hundred and sixty-one acres of land located in Travis County. A different aspect of the controversy was litigated previously. 518 S.W.2d 396 (Tex.Civ.App.1975, writ ref'd n. r. e.). After trial to a jury, in the case at bar, judgment was entered for appellees canceling the deed and for damages for $27,000.

In the outset, we must determine whether or not this Court has jurisdiction to entertain the appeal. Jurisdiction of this Court turns upon determination that (1) the district court was empowered to entertain the suit; (2) the nunc pro tunc judgment entered by the district court was valid; and (3) the nunc pro tunc judgment was final.

Appellant argues that the district court was without power to entertain the suit. This is so, argues appellant, for the reason that appellees' suit was ". . . for trial of the right of property incident to an estate . . ." Tex.Prob. Code Ann. § 5(d) (Supp.1978), and, accordingly, exclusive jurisdiction was vested in the courts in Travis County "exercising original probate jurisdiction."

The Tyler Court of Civil Appeals held that matters or proceedings "incident to an estate," under § 5, apply to those matters or proceedings in which the controlling issue is the settlement, partition, or distribution of an estate. Sumaruk v. Todd, 560 S.W.2d 141 (Tex.Civ.App.1977); see Schwartzel & Wilshusen, Texas Probate Jurisdiction: New Patches for the Texas Probate Code, 54 Texas L.Rev. 372, 382-83 (1976). In the case at bar appellees sued appellant for fraud. In their suit, appellees sought recovery of $250,000 in actual and exemplary damages and an order canceling the trustee's deed to the acreage.

The Corpus Christi Court of Civil Appeals held that § 5 conferred on the probate court concurrent jurisdiction with the district court to entertain a suit to cancel a trustee's deed to land of an estate. Folliott v. Bozeman, 526 S.W.2d 577 (Tex.Civ.App.1975, writ ref'd n. r. e.). The basis for the holding was that § 5 must be read in conjunction with Tex.Rev.Civ.Stat.Ann. arts. 1906 and 1951 (1964).

Under either Sumaruk or Folliott the district court had jurisdiction.

Appellees argue the invalidity of the judgment nunc pro tunc. A recitation of post judgment events is necessary to understand the argument. Judgment was originally signed by the district court on October 14, 1976. Eleven days later, and in the absence of a motion for new trial, the district court entered an order attempting to set that judgment aside. In that order, the court recited appellant's counsel had not received notice of entry of the judgment dated October 14, 1976 ". . . and in the interest of justice so that the defendant will not be deprived of her right to file a motion for new trial and for good cause shown, the court finds that said judgment dated October 14, 1976, should be set aside."

A second judgment, identical in terms to that of October 14, 1976, was signed by the court on November 22, 1976. Appellant then filed timely a motion for new trial and an amended motion for new trial. The district court entered an order on February 2, 1977, purporting to overrule the amended motion for new trial. Appellant filed a cost bond on February 25, 1977.

On February 5, 1977, the district court entered judgment nunc pro tunc.

Unless the nunc pro tunc judgment is valid, this Court has no jurisdiction of the appeal since the judgment of October 14, 1976, is final. The district court may not enter a judgment that simply affirms a former judgment and thereby enlarge the period for perfecting an appeal. Anderson v. Casebolt, 493 S.W.2d 509 (Tex.1973); Stewart v. Firemen's Relief & Retirement F. Tr. of Austin, 489 S.W.2d 743 (Tex.Civ.App.1973, no writ). The judgments of October 14, 1976, and of November 22, 1976, are identical except for dates of entry, and the second judgment could serve no purpose other than to enlarge the time for appeal. This conclusion is supported by the district court's recitation in its order of October 25, 1976. The signing of the second judgment on November 22, 1976, did not extend the time for perfecting the appeal, and it was necessary for the bond to be filed within thirty days after the original judgment was signed on October 14, 1976. The filing of the bond on February 25, 1977, was, of course, too late.

We have concluded that the judgment nunc pro tunc is valid. The function of judgment nunc pro tunc is to correct clerical errors in the entry of judgment. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 293 (1953). A clerical error is one which does not result from judicial reasoning or determination. See Reavley and Orr, Trial Court's Power to Amend Its Judgments, 25 Baylor L.Rev. 191, 195 (1973). For the judgment nunc pro tunc to be valid, the error must arise in the entry of judgment, and not in its rendition. Id. at 195; see Finlay v. Jones,435 S.W.2d 136 (Tex.1969). As a result, whenever the judgment entered by the court incorrectly records the judgment rendered, the error is clerical, so long as a product of judicial reasoning is not involved.

In the judgment nunc pro tunc, it is recited that the following sentence in the judgment of October 14, 1976, contains clerical errors:

"On the 13th day of April, the Court, upon stipulation of the parties, ordered the trial of the case bifurcated and ordered that the defendants, Charles Babb, Douglass D. Hearne and Tom Black, in their individual capacities, be severed from this cause and be granted a separate trial upon the allegations made against them by the plaintiffs under a new cause number . . ."

It is further recited in the judgment nunc pro tunc that:

"By a review of the court's file, and in particular the order of April 9, 1976, the court finds that the separate trial was ordered on the 9th of April, that it was done by order and not by stipulation, that defendants Charles Babb, Douglass D. Hearne, and Tom Black were granted a separate trial but were not severed from this cause, and that the case against defendants Charles Babb, Douglass D. Hearne, and Tom Black is not being docketed under a separate cause number. Accordingly, the court is of the opinion that the motion for judgment nunc pro tunc should be sustained, and that the judgment should be corrected in accordance with these findings."

On April 9, 1976, the district court rendered an order of "separate trial." However, in entering the...

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29 cases
  • Mogford v. Mogford, 16528
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • February 11, 1981
    ...S.W.2d 402 (Tex.1971). To be clerical in nature it must be one which is not the result of judicial reasoning or determination. Nolan v. Bettis, 562 S.W.2d 520 (Tex.Civ.App. Austin 1978, no writ). To be a valid judgment nunc pro tunc, the error must arise in the entry of judgment and not in ......
  • Lagoye v. Victoria Wood Condominium Ass'n, 14-02-00002-CV.
    • United States
    • Court of Appeals of Texas
    • July 31, 2003
    ...typical clerical changes that have been upheld as valid nunc pro tunc orders are corrections of the date of judgment, Nolan v. Bettis, 562 S.W.2d 520, 522 (Tex.App.-Austin 1978, no writ), correction of a party's name, Carlyle Real Estate Ltd. Partnership-X v. Leibman, 782 S.W.2d 230, 232-33......
  • Ortiz v. O. J. Beck & Sons, Inc., 1643
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 18, 1980
    ...of errors that are correctable by judgment nunc pro tunc. Hays v. Hughes, 106 S.W.2d 724 (Tex.Civ.App. Austin 1937, writ ref'd); Nolan v. Bettis, 562 S.W.2d 520 (Tex.Civ.App. Austin 1978, no writ); Wiegand v. Riojas, 547 S.W.2d 287 (Tex.Civ.App. Austin 1977, no writ); City of San Antonio v.......
  • Miller v. State, 66228
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 18, 1981
    ...a judgment will be styled as 'clerical' in nature, so long as the error did not come about as the product of judicial reasoning. Nolan v. Bettis, 562 S.W.2d 520 (Tex.Civ.App.--Austin, 1978, no In the instant case, we conclude that the omission of the appellant's name from the original judgm......
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