South Texas Tire Test Fleet, Inc. v. Long
| Decision Date | 28 December 1979 |
| Docket Number | No. 16357,16357 |
| Citation | 594 S.W.2d 540 |
| Parties | SOUTH TEXAS TIRE TEST FLEET, INC., Appellant, v. Fred L. LONG, Appellee. |
| Court | Texas Court of Appeals |
J. Tullos Wells, Manitzas, Harris & Padgett, Inc., San Antonio, for appellant.
Howard H. Hasting, Hasting & Hasting, San Antonio, for appellee.
The appeal is dismissed for lack of an appealable judgment.
Plaintiff, Fred L. Long, filed this suit in the form of a petition for declaratory judgment seeking a declaration that a covenant prohibiting him from competing with defendant, South Texas Tire Test Fleet, Inc., had expired by its own terms, and was no longer an impediment to plaintiff's plans to establish a business in competition with defendant, plaintiff's former employer.
In addition to a general denial, defendant filed a counterclaim seeking (1) a temporary and permanent injunction restraining plaintiff from competing with defendant, and (2) seeking recovery of damages by reason of an alleged breach by defendant of a contract other than the covenant not to compete.
Plaintiff filed a motion for summary judgment declaring that the covenant not to compete had expired by its own terms and was no longer effective in prohibiting plaintiff from competing with defendant. Defendant filed a motion for summary judgment limited to a prayer for judgment denying plaintiff relief.
A hearing was held on April 23, 1979, at the conclusion of which the trial court took the case under advisement and asked the parties to submit briefs. On June 4, 1979, the trial court signed a judgment reciting that: (1) the cause "came on the regular docket for hearing" on June 4, 1979; (2) plaintiff and his attorney appeared, but the defendant "appeared not and made default"; (3) plaintiff and defendant appeared in open court on April 23, 1979, and "submitted their respective motions for summary judgment on written briefs"; (4) there being no issue of material fact, plaintiff's motion for summary judgment is granted and the defendant's motion for summary judgment is denied; and (5) defendant's "counterclaim and application for temporary injunction as well as any and all other claims and motions filed by the defendant are dismissed, so that this judgment is a final judgment."
Defendant filed its appeal bond on July 2, 1979, and on the next day requested the district clerk to prepare a transcript. This Court granted defendant's request for extension of time to file the transcript until October 31, 1979, and the transcript was filed in this Court on October 30, 1979.
Meanwhile, the trial court signed an order, dated October 17, 1979, designated "Order Granting Defendant's Motion for Judgment Nunc pro Tunc." This order recited: (1) Defendant's motion for judgment nunc pro tunc "to correct clerical errors in (the judgment entered) on June 4, 1979," was heard on September 25, 1979. (2) The court, after considering the motion, "the testimony of counsel, the documents on file . . . and the Court's personal recollection of the decision actually rendered" on June 4, 1979, "determined that the (June 4, 1979, judgment), through clerical error, incorrectly states that 'the defendant appeared not and made default' and that 'defendant's counterclaim and application for temporary injunction as well as any and all other claims and motions filed by the Defendant are dismissed.' " (3) The motion for judgment nunc pro tunc is granted and the "Court on this date is entering a judgment which correctly reflects the judgment rendered by the Court and deleting therefrom the following statements entered through clerical error, to-wit: 'the defendant appeared not and made default' and 'defendant's counterclaim and application for temporary injunction as well as any and all other claims and motions filed by defendant are dismissed.' "
On October 17, 1979, the trial court signed the corrected judgment, which...
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Petroleum Equipment Financial Corp. v. First Nat. Bank of Fort Worth
...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 Ba......