Petroleum Equipment Financial Corp. v. First Nat. Bank of Fort Worth

• Decision Date: 30 September 1981
• Docket Number: No. 18610,18610
• Citation: 622 S.W.2d 152
• Parties: PETROLEUM EQUIPMENT FINANCIAL CORPORATION, Donald L. Bauer and Robert L. Wenz, Appellants, v. The FIRST NATIONAL BANK OF FORT WORTH, Appellee.
• Court: Texas Court of Appeals

Page 152

622 S.W.2d 152

PETROLEUM EQUIPMENT FINANCIAL CORPORATION, Donald L. Bauer and Robert L. Wenz, Appellants, v. The FIRST NATIONAL BANK OF FORT WORTH, Appellee.

No. 18610.

Court of Appeals of Texas, Fort Worth.

Sept. 30, 1981.

Rehearing Denied Oct. 21, 1981.

John R. Lively, Fort Worth, McGinnis, Lochridge & Kilgore and David L. Orr, Austin, for appellants.

Cantey, Hanger, Gooch, Munn & Collins and Evelyn R. Leopold, Fort Worth, for appellee.

OPINION

RICHARD L. BROWN, Justice.

Petroleum Equipment Financial Corporation (PEFCO) executed a note to The First National Bank of Fort Worth (Bank) for $421,000.00 in May of 1979. Donald Bauer (Bauer) and Robert Wenz (Wenz) were guarantors of the note. The principal and interest were to be paid in monthly installments. After paying $53,731.48 PEFCO defaulted. Bank instituted action in district court to recover from PEFCO, Bauer and Wenz $367,268.52 as principal plus interest due and owing on the note. On January 9, 1981 Bank's motion for summary judgment was granted. On the same day the trial judge made the following initialled entry on his docket sheet: "Plaintiff's motion for summary judgment granted." The judgment was prepared by Bank's counsel and signed by the trial judge on February 10, 1981. Due to an error by Bank's counsel in preparing the judgment, the amount of principal was omitted from the judgment. As a result, the signed judgment stated that Bank be awarded $16,631.50 representing principal and interest. On April 2, 1981 Bank filed a motion for correction of judgment, pursuant to Tex.R.Civ.P. 317. A hearing was held on the motion on April 9, 1981. On May 5, 1981 the trial court signed an order granting Bank's motion decreeing that it recover the principal sum of $367,268.52 plus interest in the amount of $16,631.50. PEFCO, Bauer and Wenz appealed.

We affirm.

Appellants assert three points of error. First, appellants assert that the trial court erred in entering the judgment of May 5, 1981 because the judgment of February 10, 1981 had become final and the error alleged to have occurred was not clerical, but judicial, which was not correctable by entry of judgment nunc pro tunc. The second and third points of error urge that there was no evidence, or alternatively, insufficient evidence to support the conclusion that the error in the judgment of February 10 was clerical. We overrule all three points of error.

First, we focus our attention on appellants' initial point of error. The courts of this state have repeatedly held that after a judgment has become final a nunc pro tunc judgment is available to correct only clerical errors, not judicial errors in the court's judgment. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.1970); Finlay v. Jones, 435 S.W.2d 136 (Tex.1968).

Clerical errors occur in the entry of the court's judgment, while judicial errors are committed in the rendition of judgment. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). The critical issue therefore, is when the judgment of the trial court was rendered. The Supreme Court of this state has held that: "rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which an enduring evidence of the judicial act is afforded." Coleman v. Zapp, supra 151 S.W. at 1041.

Application of this well settled test to the facts of this case indicates that the matters in issue between the parties had been settled when the trial court granted Bank's motion for summary judgment on January 9, 1981. The trial court's deliberative processes were completed on that date. The signing of the incorrect judgment on February 10, by the trial judge, involved no judicial reasoning. It merely sought to reflect correctly the judgment that had been previously rendered. When the judgment signed by the judge does not correspond to the judgment rendered, "the error is a clerical error irrespective of whether it was made by the judge, the attorney who prepared the judgment or the clerk." South Texas Tire Test Fleet, Inc. v. Long, 594 S.W.2d 540, 542 (Tex.Civ.App. San Antonio 1979, no writ). Accordingly, the omission of the principal from the prepared judgment for Bank was a clerical error.

Once a clerical error in the judgment has been discovered the trial court has the inherent...