Wood v. Griffin & Brand of McAllen

• Decision Date: 30 April 1984
• Docket Number: No. 13-82-384-CV,13-82-384-CV
• Citation: 671 S.W.2d 125
• Parties: Conan T. WOOD, Sr., Appellant, v. GRIFFIN & BRAND OF McALLEN, et al., Appellees.
• Court: Texas Court of Appeals

Page 125

671 S.W.2d 125

Conan T. WOOD, Sr., Appellant, v.GRIFFIN & BRAND OF McALLEN, et al., Appellees.

No. 13-82-384-CV.

Court of Appeals of Texas Corpus Christi.

April 30, 1984.

Wm. W. Sommers, San Antonio, for appellant.

Neal King, King & Pena, Mission, for appellees.

Before NYE, C.J., and YOUNG and UTTER, JJ.

OPINION

NYE, Chief Justice.

This is an attempted appeal from a judgment nunc pro tunc rendered partially against appellants, Conan T. Wood, Sr.; Ella G. Wood; Conan T. Wood, Jr.; and the estate of A. Wayne Wood, on October 15, 1982.On our own motion, we raise the jurisdictional question that the appeal was not timely perfected as required by TEX.R.CIV.P. 356.

Appellants brought this suit for money damages for the alleged breach of covenants under a lease agreement, including the destruction of an irrigation pipeline.The lease was executed February 1, 1973 by appellant, Conan T. Wood, Sr., as lessor, to defendant, Louisiana Strawberry & Vegetable Distributing Company(La. Strawberry), as lessee.¹Several years after La. Strawberry took possession of the lease property, the lease was assigned by La. Strawberry to appellee, Griffin & Brand of McAllen, Inc.Appellants also brought suit for recovery of possession of and to quiet title to Tract 45 of Los Ejidos de Reynosasubdivision, Hidalgo County, Texas, in the nature of a trespass to try title action.Appellants claimed additional relief, such as lost rents, an accounting for profits and punitive damages.

The present case was tried before the court without a jury.At the conclusion of the trial, no oral pronouncement of judgment was made by the Court.Rather, the trial judge reserved judgment from the bench and requested that arguments be submitted by the parties in written form within specified time periods.Accordingly, a written judgment was prepared and signed by the court on June 29, 1982.This written judgment awarded appellants(plaintiffs) the sum of $5,000.00, representing damages for breach of lease agreement and attorney's fees.Concerning the title dispute to Tract 45, the original judgment ordered that appellants(plaintiffs) recover from appellees(defendants) an undivided one-fourth ( 1/4) interest in the land in controversy and that "defendants" take nothing as to the remaining three-fourths interest in Tract 45.

Appellants filed a timely Motion for New Trial which was overruled by operation of law on September 12, 1982.²On September 22, 1982, appellees filed a Motion to Correct Judgment Nunc Pro Tunc.On October 15, 1982, appellees presented their motion for judgment nunc pro tunc to the court to correct the alleged "clerical errors" in the decretal portion of the original judgment which read:

"[a]nd that said defendants take nothing on their claim to the other three-fourths and interest in to said Tract 45."

to read:

"[a]nd that said plaintiffs take nothing on their claim to the other three-fourths interest in and to said Tract 45."(Emphasis added.)

After the hearing, the trial judge granted the motion and rendered a Judgment Nunc Pro Tunc on October 15, 1982, which stated only that it was "entered to correct clerical errors in the judgment heretofore entered."It is from that judgment that appellants seek relief on appeal.

In their first point of error, appellants contend that the trial court erred by attempting to correct a judicial error, not a clerical error, by the judgment nunc pro tunc.The essence of appellants' argument is that no evidence was offered at the hearing for motion for judgment nunc pro tunc, nor was any assertion made by counsel for appellees, that the original judgment as entered did not correctly reflect the judgment rendered by the trial court.

It has long been settled that judgment is rendered (emphasis added) when a trial court's decision is officially announced.Its 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, 151 S.W. 1040(Tex.1912).It is also well settled that a court's power to correct its judgment after such judgment has become final is limited solely to the correction of clerical errors, as distinguished from judicial errors.Clerical errors in the entry of the judgment may be subsequently corrected by judgment nunc pro tunc.Judicial errors in the rendition of the judgment may not be corrected by a nunc pro tunc proceeding.Comet Aluminum Company v. Dibrell, 450 S.W.2d 56(Tex.1970);Finlay v. Jones, 435 S.W.2d 136(Tex.1968);Knox v. Long, 152 Tex. 291, 257 S.W.2d 289(1953);Coleman v. Zapp, 151 S.W. at 1041;see alsoTEX.R.CIV.P. 316, 317.Whether an error in an original judgment is judicial or clerical is a question of law, and a trial court's finding or conclusion as to the nature of an error is not binding on an appellate court.Lone Star Cement Corp. v. Fair, 467 S.W.2d 402(Tex.1971);Finlay v. Jones, 435 S.W.2d at 138.

Applying the above stated rules to the present case, the trial court's power to correct judicial errors in the judgment of June 29, 1982, terminated at the end of the term at which the judgment became final, i.e., after the expiration of thirty days from the date on which appellants' original motion for new trial was overruled by operation of law.TEX.R.CIV.P. 329b(e).The order dated October 15, 1982, attempting to correct errors contained in the prior judgment would be valid only if the errors corrected can be considered clerical errors, as a matter of law.

The rule limiting the power of the trial court to correct judgments which have become final is a simple one.However, its application can be difficult because of the difficulty in distinguishing between "clerical" errors and "judicial" errors.To be clerical in nature, it must be one which is not the result of judicial reasoning, evidence or determination.Mogford v. Mogford, 616 S.W.2d 936(Tex.Civ.App.--San Antonio1981, writ ref'd n.r.e.);Nolan v. Bettis, 562 S.W.2d 520(Tex.Civ.App.--Austin 1978, no writ).In order to establish that the error attempted to be corrected by the judgment nunc pro tunc was, in fact, a clerical error, it must be clearly shown that the written judgment signed by the trial judge and entered of record did not correctly reflect the judgment actually rendered by the court.The critical issue, therefore, is when the judgment of the trial court was rendered, i.e., at what point did the trial court complete its deliberative processes and officially announce its judicial determination.SeePetroleum Equipment Financial Corp. v. First National Bank of Fort Worth, 622 S.W.2d 152(Tex.App.--Fort Worth1981, writ ref'd n.r.e.).

In the instant case, it is undisputed that judgment was not orally rendered or pronounced from the bench by the trial court.During oral arguments on appeal, appellants stated that the parties were "notified by letter"; presumably that the trial court had reached a decision in the case.³However, no letter evidencing any prior rendition of judgment by the trial court has been brought forward as part of the record on appeal.This is, therefore, a case where the judge's signing of the original written judgment constituted his rendition of judgment.SeeDikeman v. Snell, 490 S.W.2d 183(Tex.1973).In this instance particularly, a judgment nunc pro tunc can only be granted if there is evidence that is clear, satisfactory and convincing that a clerical error was made in the entry of the June 29, 1982 judgment.SeeDavis v. Davis, 647 S.W.2d 781(Tex.App.--Austin 1983, no writ);Perry v. Nueces County, 549 S.W.2d 239(Tex.Civ.App.--Corpus Christi1977, writ ref'd n.r.e.).The nunc pro tunc judgment is invalid if it purports to change and readjudicate or rewrite and change the terms of the judgment as rendered, i.e., the decretal portion of the judgment.SeeMathes v. Kelton, 569 S.W.2d 876(Tex.1978);Dikeman v. Snell, 490 S.W.2d at 186;McHone v. Gibbs, 469 S.W.2d 789(Tex.1971);see generallyReavley and Orr, Trial Court's Power to Amend Its Judgments, 25 BaylorL.Rev. 191, 197(1973).

In the case at bar, the alleged erroneous recitation made by the trial court in the judgment rendered on June 29, 1982 is that the defendants(appellees), rather than the plaintiffs(appellants), take nothing on their claim to the remaining three-fourths' interest in Tract 45.Appellees contend that the party designations were erroneously transposed in the trial court's original judgment.Appellees suggested during oral arguments that, in entering the judgment, the trial judge was simply signing a judgment containing an erroneous recitation of the parties' names (i.e., a misnomer) prepared and presented by appellees' attorney.We recognize that this may or may not be so as a practical matter; however, it cannot be accepted as true in determining the nature of the error in the judgment.The two primary judicial decisions the trial judge had to make in rendering the judgment were (1) the sum of damages appellants were entitled to recover from appellees, if any, for breach of lease agreement and attorney's fees, and (2) the respective ownership interests in Tract 45.

Appellees' primary argument in support of the corrected judgment is that the statement in the original judgment that "defendants take nothing on their claim" is nonsensical and ambiguous since appellees(defendants) made no claim to the remaining three-fourths' interest in Tract 45.Appellees contended that they simply answered "not guilty" to appellants' trespass to try title action and that a "take nothing" judgment cannot be supported by a "not guilty" plea.The record shows that appellees proceeded to trial on their Fourth Amended Original Answer, in which appellees did answer "not guilty" to appellants' cause of action for trespass to try title.However, in that same Answer, appellees denied that any of the...