Riner v. Briargrove Park Property Owners, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: WILSON
• Citation: Riner v. Briargrove Park Property Owners, Inc., 976 S.W.2d 680 (Tex. App. 1997)
• Decision Date: 07 August 1997
• Docket Number: No. 01-96-00093-CV,01-96-00093-CV
• Parties: Stephen N. RINER, Appellant, v. BRIARGROVE PARK PROPERTY OWNERS, INC., Appellee. (1st Dist.)

Page 680

976 S.W.2d 680

Stephen N. RINER, Appellant, v. BRIARGROVE PARK PROPERTY OWNERS, INC., Appellee.

No. 01-96-00093-CV.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 7, 1997.

Rehearing Overruled March 23, 1998.

Shawn Casey, Houston, for Appellant.

Donald Michael Stull, Houston, for Appellee.

Before WILSON, MIRABAL and TAFT, JJ.

OPINION

WILSON, Justice.

Appellant, Stephen N. Riner, appeals the trial court's modification of judgment in favor of Briargrove Park Property Owners, Inc. (Briargrove). In one point of error, appellant argues the trial court corrected a judicial error beyond its plenary jurisdiction. As a result, appellant asks this Court to set aside the modified judgment as void. We agree, and find the September 20, 1995, judgment void.

Procedural History

This case was tried, appealed, reversed in part, tried again on the issue of attorney's fees, and is now before us again on a second appeal. Because the long procedural history of the case is important in understanding the issue before us, we set it out in some detail. We quote directly from the opinion of the Texarkana Court of Appeals as to the case's factual basis and procedural background up to November, 1993:

This case originated as a suit to quiet title to a lot in the Briargrove Park subdivision. Briargrove Park Property Owners, Inc. was joined in the suit as a defendant because it claimed a lien on the property. Briargrove filed a counterclaim to recover unpaid maintenance assessments against the property that had accrued since 1985. It also sought foreclosure of its lien securing the assessments and attorney's fees. In June of 1990, Riner, a defendant in the original title suit, offered to pay Briargrove $2,000.00 as full payment for the unpaid maintenance fees against the lot in which he claimed an interest. Riner's offer was for slightly more than the fees that were due, but it did not include any amount for costs or attorney's fees. Briargrove rejected the offer, and in October of 1991, Riner brought a cross-claim against Briargrove.

The original action was settled in November of 1991, with title to the lot being awarded to Riner. The cross-claim for the unpaid assessments went to trial, and the court rendered judgment awarding Briargrove $2,018.79 for past due fees and interest. The court, however, held that Riner had not personally breached the assessment covenant and rendered judgment for the assessments in rem, i.e. against the property, rather than rendering a personal judgment against Riner. The court further held that Briargrove was not a prevailing party and thus should not recover attorney's fees. An order of sale was issued, but Riner paid the judgment to avoid the sale.

Briargrove Park Prop. Owners, Inc. v. Riner, 867 S.W.2d 58, 60 (Tex.App.--Texarkana 1993, writ denied).

On November 9, 1993, the Texarkana Court of Appeals issued an opinion remanding the case to the trial court to solely determine the amount of attorney's fees and costs to be awarded to Briargrove. On March 1, 1995, the trial court entered a judgment awarding total attorney's fees of $10,000 to Briargrove. The judgment did not mention the actual damages, $2,018.79, awarded to Briargrove in the original trial. The court further ordered that this judgment replaced "in all respects" the previous judgment signed on March 17, 1992. Briargrove timely filed a motion for new trial requesting additional attorney's fees and an in rem judgment making the property liable for payment of these attorney's fees. The motion was overruled by operation of law on May 15, 75 days after the judgment was signed. The trial court lost its plenary power on June 14, 105 days after the judgment was signed.

On September 20, 1995, the trial court changed the March 1, judgment, and ordered the following in Briargrove's favor: (1) a lien against Riner's property; (2) judgment for $2,018.79; (3) attorney's fees for $10,000; plus (3) interest after judgment at the rate of 10 per cent per annum until paid. Thus, the September judgment purports to secure the award of attorney's fees with a lien against Riner's property, and to reinstate the damage award that Riner already paid to Briargrove. Briargrove, 867 S.W.2d at 60. In essence, this judgment was an attempt to combine the two previous judgments.

Because the trial court's changes were made outside its plenary jurisdiction, we must determine if the changes were clerical or judicial. A judgment nunc pro tunc is used to correct clerical errors and may be executed after the trial court loses its plenary jurisdiction. ¹ TEX.R.CIV.P. 329b(f); Cannon v. ICO Tubular Servs., Inc., 905 S.W.2d 380, 389 (Tex.App.--Houston [1st Dist.] 1995, no writ). Judicial errors, however, may not be corrected after a trial court loses its plenary jurisdiction. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). A clerical error does not result from judicial reasoning, evidence or determination. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986). It is a discrepancy between the entry of a judgment in the record and the judgment as actually rendered. Id. A judicial error occurs in the rendering, rather than the entering of a judgment. Escobar, 711 S.W.2d at 231. If the court corrects a judicial error after the expiration of its plenary power, the judgment is void. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973).

A judgment nunc pro tunc should be granted if the evidence is clear and convincing that a clerical error was made. Pruet v. Coastal States Trading, Inc., 715 S.W.2d 702, 705 (Tex.App.--Houston [1st Dist.] 1986, no writ). Evidence may be in the form of oral testimony of witnesses, written documents, previous judgments, the court's docket or the judge's personal recollection. See id. If the judge relies on his personal recollection of the facts, we presume his personal recollection...