Ortiz v. O. J. Beck & Sons, Inc.

• Decision Date: 18 December 1980
• Docket Number: No. 1643,1643
• Citation: 611 S.W.2d 860
• Parties: Salvador ORTIZ, Appellant, v. O. J. BECK & SONS, INC., Appellee.
• Court: Texas Court of Appeals

Page 860

611 S.W.2d 860

Salvador ORTIZ, Appellant, v. O. J. BECK & SONS, INC., Appellee.

No. 1643.

Court of Civil Appeals of Texas, Corpus Christi.

Dec. 18, 1980.

William D. Bonilla, Bonilla, Read, Bonilla & Berlanga, Inc., Corpus Christi, for appellant.

Richard J. Hatch, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellee.

OPINION ON APPELLEE'S PLEA TO THE JURISDICTION AND MOTION TO DISMISS

PER CURIAM.

The jurisdiction of this Court has been challenged by appellee in a plea to the jurisdiction and motion to dismiss the appeal. Appellee asserts that the appeal was not timely perfected because the appeal bond was filed 31 days after rendition of judgment and a motion for new trial filed 11 days after rendition of judgment was ineffective to extend the time for perfection of the appeal. In support of its position, appellee has brought forward a transcription of a hearing on appellant's motion for nunc pro tunc correction of judgment. The transcript, however, contains an order granting the motion and correcting the judgment to show it was actually signed one day later than the date shown on the judgment.

It is well settled that a trial judge can amend a judgment prior to the time that it becomes final. Mathes v. Kelton, 569 S.W.2d 876 (Tex.1978); Transamerican Leasing Co. v. Three Bears, Inc., 567 S.W.2d 799 (Tex.1978). After the judgment becomes final, it can be altered only if the evidence shows that a clerical error, rather than a judicial error, caused the official records of the court to reflect inaccurately the judgment actually rendered. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.1970), and cases cited therein; Perry v. Nueces County, 549 S.W.2d 239 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n.r.e.); Rule 316, T.R.C.P.; Reavley and Orr, Trial Court's Power to Amend Its Judgments, 25 Baylor L.Rev. 191 (1973).

Dates contained in judgments have been held on many occasions to be the type 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. Terrill, 501 S.W.2d 394 (Tex.Civ.App. San Antonio 1973, writ ref'd n.r.e.); Capitol Life Insurance Co. v. Rutherford, 468 S.W.2d 535 (Tex.Civ.App. Houston (1st Dist.) 1971, no writ).

In this case, the resolution of the jurisdictional issue requires a determination of when the judgment was actually rendered. At the outset, it is helpful to clarify the separate acts of rendition, signing, filing, and entry of judgments. Imprecise use of these terms causes confusion, and should be avoided. See Burrell v. Cornelius, 570 S.W.2d 382 (Tex.1978).

"Rendition" is a judicial act by which the court settles and declares publicall the decision of the law upon the matters at issue. This occurs when the decision is officially announced, either orally in open court, or by some memorandum filed with the clerk. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 292 (1953); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041 (1912).

"Signing" occurs when the judge actually signs the written draft of the judgment "Filing" occurs when the signed draft of the judgment is placed in the custody of the clerk of the trial court for inclusion with the papers in the cause.

and this is usually deemed to be the date of rendition for purposes of calculating appellate time limits. Burrell v. Cornelius, 570 S.W.2d 382 (Tex.1978); Rule 306a, T.R.C.P.

"Entry" refers to the clerk's act of placing a copy of the judgment in the official record of the court, which is its minutes. Burrell v. Cornelius, supra; Sigler v. Realty Bond & Mortgage Co., 135 Tex. 76, 138 S.W.2d 537 (Tex.Comm.App.1940, opinion adopted); Reavley and Orr, Trial Court's Power to Amend Its Judgments, 25 Baylor L.Rev. 191 (1973); Tex.Rev.Civ.Stat.Ann. arts. 1899 and 1943 (1964).

These four separate and distinct acts have different purposes. They could occur on the same or different dates. They are performed by at least two different court officials.

In this appeal, the pertinent events are as follows:

September 24, 1979 Date shown on judgment as "signed and entered"

September 25, 1979 Date on letter of the trial judge addressed to the attorneys announcing the decision of the trial court and that judgment "... will be entered as of this date." (emphasis supplied)

October 5, 1979 Defendant's motion for new trial filed.

October 25, 1979 (a) appeal bond filed,

(b) hearing on defendant's motion for new trial and on defendant's motion for nunc pro tunc correction of judgment, and

(c) order signed amending judgment to reflect a date of September 25, 1979, instead of September 24, 1979.

The purported nunc pro tunc correction of judgment occurred within 30 days of September 25, 1979, the date the trial judge determined that the judgment was actually signed. Therefore, it was not a true nunc pro tunc judgment because the trial court had plenary power to amend and/or correct his judgment within this 30 day time period as such. Rule 329b(5), T.R.C.P.

The testimony of the witnesses at the October 25 hearing shows that no one, at that particular time, had a then present recollection of the actual date the judgment was signed, entered, or filed. However, the record does contain a letter dated September 25, 1979, and signed by the trial judge which informed the attorneys of his decision in the case on the merits and stated that the judgment would be "... entered as of this date." (emphasis supplied)

At the hearing, testimony was elicited from the deputy district clerk concerning the filing and entry of the judgment, from the trial judge who signed the judgment dated September 24 and the letter dated September 25, and from the court coordinator who typed the letter. The court coordinator testified that she customarily typed and mailed the judges letters the day they are dictated, but that she had no independent recollection concerning this particular letter. The deputy clerk testified that the judgment was entered in the minutes of September 24, 1979, because the judgment bore that date, but she had no recollection and no means to determine on what date the act of entry occurred. She further testified that judgments and orders are not filed or marked in any way to indicate when they come into the actual custody of the clerk. There was no independent recollection by the trial judge, court coordinator, or deputy clerk of when the judgment was signed, filed, or entered, or when notations on the docket sheet and file jacket were made.

We do find, however, that the judge's signature on the letter is evidence that the trial judge personally saw the letter bearing the September 25 date, and that the facts in the letter are true and correct. There is nothing in the record to dispute these facts. The judge was therefore entitled to find, as a fact, that the judgment was incorrectly dated. We conclude that the order correcting the date of signing from September 24 to September 25 was Even if the trial judge was mistaken in this determination and the judgment had actually been signed on September 24, we would reach the same conclusion.

valid, and the starting date for all appellate steps commenced September 25, 1979.

It is undisputed that no announcement of the decision was made in open court. To determine the date of rendition, therefore, we must look to the date that a written memorandum of the judge's decision was filed with the clerk or made public otherwise. Comet Aluminum Company v. Dibrell, supra; Knox v. Long, supra; Coleman v. Zapp, supra. If the decision was announced by memorandum filed prior to the date the judgment was signed, then the filing date becomes irrelevant for purposes of appeal. Generally the appellate time table depends only on the date of signing. Burrell v. Cornelius, supra; Rule 306a, T.R.C.P. If, however, the signing occurred prior to "announcement" of the decision, then we must look beyond Rule 306a to avoid the incongruous result of a ruling that the judgment was rendered for appeal purposes before it was rendered at all.

The requirement that the decision be "announced" is an integral and necessary part of the concept of rendition. Otherwise, the time for appeal could expire before a judgment or order became a matter of public record, and a signed judgment or order which was lost or misplaced prior to its public announcement could foreclose a direct appeal. The public nature of rendition underlies the principle that charges parties and lawyers alike with notice of all orders and judgments rendered in a case. See University of Texas v. Morris, 163 Tex. 130, 352 S.W.2d 947 (1962); Mayad v. Rizk, 554 S.W.2d 835 (Tex.Civ.App. Houston (14th Dist.) 1977, writ ref'd n.r.e.); Pentikis v. Texas Electric Service Company, 470 S.W.2d 387 (Tex.Civ.App. Fort Worth 1971, writ ref'd n.r.e.).

Here, none of the court officials was able to determine when the decision became a matter of public record. However, a decision announced by letter from the court to the parties when no announcement is made in open court or any memorandum filed with the clerk, would constitute rendition. See Kostura v. Kostura, 469 S.W.2d 196 (Tex.Civ.App. Dallas 1971, writ dism'd).

The date appearing on the judgment did not evidence actual rendition in this instance because it lacked the necessary element of public announcement. Rendition is, necessarily, a prerequisite before the date of signing can become a conclusive starting point for appeal purposes.

We conclude, therefore, that the judgment was not announced and therefore not rendered, until September 25, 1979. The motion for new trial filed October 5, 1979, and the appeal bond filed October 25, 1979, were timely. Appellee's motion to dismiss for want of jurisdiction is denied....