Hernandez v. Lopez

288 S.W.3d 180, 2009 Tex. App. LEXIS 2093, 2009 WL 793635

• Court: Court of Appeals of Texas
• Decided: March 26, 2009
• Docket: 01-06-00901-CV
• Status: Published

Opinions

OPINION ON REHEARING

LAURA CARTER HIGLEY, Justice.

Appellant, George Hernandez, appeals from a judgment nunc pro tunc granted in favor of appellee, the Office of the Attorney General of Texas (“the OAG”), in which the trial court modified the arrear-age in a child support enforcement order.

In what we construe as one issue, George contends that the trial court erred by granting the OAG’s motion for judgment nunc pro tunc because the evidence is insufficient to support the trial court’s implied finding that the agreed order contained a clerical error.

On August 28, 2008, we vacated the trial’s court’s judgment nunc pro tunc, leaving intact the trial court’s original judgment of January 27, 2004. The OAG moved for rehearing. We deny the motion, but withdraw the opinion dated August 28, 2008, and issue this opinion in its stead. Our disposition and judgment remain unchanged.

We vacate the judgment nunc pro tunc.

Facts and Procedural History

On May 16, 1986, a child, C.L.H., was born to George and appellee, Maria Guadalupe Lopez (formerly, Hernandez). In 1992, George was ordered to begin paying $260 in monthly child support for C.L.H. Thereafter, George failed to make certain child support payments.

On January 21, 2004, a child-support enforcement hearing was held before a master. There is not a record of that hearing before us in this appeal. However, the record shows that George, Maria, and the OAG signed an “Agreed Order Enforcing Child Support Obligation” (“Agreed Order”).

The Agreed Order contains a judgment on arrears, which states, “The Court FINDS and CONFIRMS that [George] is in arrears in the amount of $51,000.00 as of December 31, 2004.” (Bold emphasis added.) On January 27, 2004, the trial court signed an order adopting the master’s report and the Agreed Order. There is not a record of any hearing at the time the trial court signed the order before us in this appeal.

Over two years later, on April 11, 2006, the OAG filed a motion for judgment nunc pro tunc, alleging that the Agreed Order contained a clerical error in the date that the arrearage was confirmed. Specifically, the OAG alleged that the date of December 31, 2004 stated in the Agreed Order should have been December 31, 2003. In addition, the OAG filed a “Motion to Confirm Child Support Arrearage,” alleging that George had failed to pay the sum in arrears. The OAG appended to its motion an accounting statement from the OAG stating that appellant owed $51,000 as of December 31, 2003.

On August 22, 2006, a hearing was held on the motion for judgment nunc pro tunc. The OAG presented the testimony of Maria as its evidence that the date of December 31, 2004 had been incorrectly entered. Maria testified, as follows, in relevant part:

Q. Did you approach the judge with the Attorney General and your ex?

A. I believe so, yes, sir.

Q. Okay. And did you-all recite your agreement into the record?

A. Yes, sir.

Q. And was it agreed upon and stipulated on the record that the arrears as of December 31st, 2003 were $51,000?

A. Yes, sir.

Q. Was there any testimony on the record — Was there any testimony that the agreement was 2004?

A. No, sir.

On cross-examination, Maria testified that she could not recall the name of the judge or of any of the attorneys involved.

George, who appeared through his counsel, objected to the entry of judgment nunc pro tunc, contending that the requested change of date constituted a substantive change outside the trial court’s plenary period. Specifically, George contended that the change of date would result in an extra year of interest and would vitiate the parties agreement that the arrearage be confirmed at $51,000 as of December 31, 2004.

At the close of the hearing, the trial court granted the OAG’s motion for judgment nunc pro tunc, ordering that the date of the confirmation of arrearage be changed from December 31, 2004 to December 31, 2003. The trial court explained the basis for its determination as follows:

The court can observe that I have yet to see a Motion for Nunc Pro Tunc that didn’t make a substantive change to the Order. So, I’ve never found the supposed distinction between clerical and substantive errors to be any help to the Trial Court in determining these issues. They always make some change that affects the substance of the Order. Presumably, nobody would be down here requesting nunc pro tunes if they didn’t; but I think it is permissible for the court to assume that the underlying court would not enter a judgment it had no authority to enter. And given the testimony, the Court is comfortable granting the motion.

This appeal ensued.

Jurisdiction

As a threshold issue, the OAG contends that we do not have jurisdiction to consider this appeal because George’s notice of appeal was untimely filed. Specifically, the OAG contends that, because the judgment nunc pro tunc was signed on August 22, 2006, George’s notice of appeal was due by September 21, 2006. George filed his notice of appeal on September 22, 2006, however, and did not file a motion for extension of time.

With exceptions not applicable herein, a notice of appeal must be filed within 30 days after the date the judgment is signed. See Tex.R.App. P. 26.1. An appellate court may extend the time to file the notice of appeal, if, within 15 days after the deadline for filing the notice of appeal, the party files in the trial court the notice of appeal and files in the appellate court a motion complying with rule 10.5(b). Id. 26.3. Rule 10.5(b) requires that a motion for extension of time to file a notice of appeal include, inter alia, “the facts relied on to reasonably explain the need for an extension.” Id. 10.5(b)(2).

An extension of time is implied when an appellant, acting in good faith, files a notice of appeal beyond the time permitted by Rule 26.1, but before the expiration of the 15-day period in Rule 26.3. See Hone v. Hanafin, 104 S.W.3d 884, 885-86 (Tex.2003) (applying Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997)); Coronado v. Farming Tech., Inc., 994 S.W.2d 901, 901 (Tex.App.-Houston [1st Dist.] 1999, no pet.). However, rule 10.5 still requires that an appellant offer a reasonable explanation for her failure to timely file a notice of appeal. Tex.R.App. P. 10.5(b)(2); see Hone, 104 S.W.3d at 886; Verburgt, 959 S.W.2d at 617.

Here, the record shows that the judgment nunc pro tunc was signed on August 22, 2006 and therefore George’s notice of appeal was due by September 21, 2006. George’s notice of appeal, filed on September 22, 2006, was beyond the time permitted by Rule 26.1, but was before the expiration of the 15-day period in Rule 26.3. Because George has also filed a factual explanation indicating that he, in good faith, believed that he filed on time and had inadvertently miscalculated the dates, we imply an extension of time, and we conclude that George’s notice of appeal was timely filed. See Hone, 104 S.W.3d at 885-86; Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex.App.Houston [1st Dist.] 1999, pet. denied) (stating that “reasonable explanation” means any plausible statement of circumstances indicating that failure to timely file was not deliberate but was the result of inadvertence). Hence, our jurisdiction over this appeal is established, and we turn to the merits of the appeal.

Judgment Nunc Pro Tunc

George contends that the trial court erred by granting the OAG’s motion for judgment nunc pro tunc because the evidence is insufficient to support the trial court’s implied finding that the agreed order contained a clerical error. Specifically, appellant contends that changing the date confirming appellant’s arrearage created an increase in his obligation to pay and therefore constituted a substantive change. Appellant contends that the trial court was without plenary power to make a substantive change to the judgment.

A. Standard of Review and Applicable Law

Pursuant to Rule 329b(d) of the Texas Rules of Civil Procedure, the trial court has plenary power for 30 days after a judgment is signed to grant a new trial or to vacate, modify, correct, or reform the judgment. Tex.R. Civ. P. 329b(d). Once the trial court’s plenary power expires, it cannot set its judgment aside except by a bill of review for sufficient cause. Tex.R. Civ. P. 329b(f). However, the trial court may at any time correct a clerical error in the judgment by entering a judgment nunc pro tunc. Tex.R. Civ. P. 316; 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986); Barton v. Gillespie, 178 S.W.3d 121, 126 (Tex.App.-Houston [1st Dist.] 2005, no pet.).

A clerical error is a discrepancy between the entry of a judgment in the record and the judgment that was actually rendered, and does not arise from judicial reasoning or determination. Barton, 178 S.W.3d at 126 (citing Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986)). A judicial error, on the other hand, occurs in the rendering, as opposed to the entering, of a judgment. Escobar, 711 S.W.2d at 231. It arises from a mistake of law or fact that requires judicial reasoning to correct. Butler. v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2000, pet. denied).

When deciding whether an error is clerical or judicial, the court must look to the judgment actually rendered and not to the judgment that should or might have been rendered. Escobar, 711 S.W.2d at 231. The trial court can only correct the entry of a final written judgment that incorrectly states the judgment actually rendered. Id. at 231-32. Even if the trial court incorrectly rendered judgment, it cannot alter a written judgment that precisely reflects the incorrect rendition. Id. at 232. A judgment rendered to correct a judicial error after plenary power has expired is void. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973); Barton, 178 S.W.3d at 126.

Whether an error is judicial or clerical is a question of law. Escobar, 711 S.W.2d at 232. However, whether the court pronounced judgment orally and the terms of the pronouncement are questions of fact. Id. “The judicial or clerical question becomes a question of law only after the trial court factually determines whether it previously rendered judgment and the judgment’s contents.” Id.

This court has held that, in order for a judgment nunc pro tunc to be properly granted, the evidence must be clear and convincing that a clerical error was made. Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 683 (Tex.App.-Houston [1st Dist.] 1997, no writ); but see Wittau v. Storie, 145 S.W.3d 732, 736 n. 3 (Tex.App.-Fort Worth 2004, no pet.) (applying traditional legal and factual sufficiency standards). Evidence may be from oral testimony of witnesses, written documents, previous judgments, docket entries, or the trial judge’s personal recollection. Riner, 976 S.W.2d at 683.

B. Analysis

Here, the trial court signed the Agreed Order on January 27, 2004, which included a judgment on arrears, stating, “The Court FINDS and CONFIRMS that [George] is in arrears in the amount of $51,000.00 as of December 31, 2004.” The trial court’s plenary power expired on February 26, 2004, and the trial court was not permitted to correct a judicial error after that date. See Tex.R. Civ. P. 329b(d); Dikeman, 490 S.W.2d at 186.

Over two years later, on August 22, 2006, the trial court issued the judgment nunc pro tunc, changing the date of George’s arrearage from December 31, 2004 to December 31, 2003. We consider whether the trial court permissibly corrected a clerical error or improperly attempted to correct a judicial error outside of its plenary power. See Tex.R. Civ. P. 316; Escobar, 711 S.W.2d at 231; Dikeman, 490 S.W.2d at 186.

George contends that the change in the year of the confirmation of his arrearage from 2004 to 2003 created a new payment obligation that was not present in the Agreed Order. George contends that the change of date was a substantive change, and thus a judicial error, because it resulted in an extra year of interest and vitiated the parties agreement that the arrearage be confirmed at $51,000 as of December 31, 2004.

The record shows that, on January 21, 2004, a hearing was conducted before a family court master on the OAG’s motion for child support enforcement. Subsequently, George, Maria, and the OAG signed the proposed Agreed Order. The terms of the Agreed Order were set forth by the parties, and the Agreed Order states that the master submitted “the proposed” Agreed Order to the trial court and recommended its approval. On January 27, 2004, when the trial court signed the Agreed Order adopting the master’s recommendation as the order of the court, rendition of the judgment occurred.¹ See In re Fuselier, 56 S.W.3d 265, 268 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding); see also Roman Catholic Diocese of Dallas v. County of Dallas Tax Collector, 228 S.W.3d 475, 479 (Tex.App.Dallas 2007, no pet.) (explaining that signing of agreed judgment submitted to trial court for its approval constitutes rendition of judgment). The error at issue herein, if any, occurred in the rendering of the judgment.

An error that is present in the rendition of judgment is always judicial error, which may not be corrected by a nunc pro tunc judgment. America’s Favorite Chicken Co. v. Galvan, 897 S.W.2d 874, 878-79 (Tex.App.-San Antonio 1995, writ denied) (citing Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59 (Tex.1982)); Fuselier, 56 S.W.3d at 267 (stating that error in rendering judgment is judicial error).

In Galvan, the plaintiff initially sued the defendant in Bexar County. 897 S.W.2d at 876. Subsequently, the plaintiff decided to bring the lawsuit in Maverick County and ified a motion for non-suit in Bexar County, requesting that the trial court grant a non-suit “with prejudice.” Id. The trial court issued an order granting the non-suit “with prejudice.” Id. When the plaintiff re-filed her suit in Maverick County, the defendant moved to dismiss based on the Bexar County trial court’s order of non-suit “with prejudice.” Id. The plaintiff moved for a judgment nunc pro tunc, alleging that she had erroneously moved for non-suit “with” prejudice, rather than “without.” Id. At a hearing on the motion, the plaintiffs counsel testified that the request for a non-suit “with prejudice” was a clerical error made by his legal assistant. Id. The trial court granted the motion and changed the order of non-suit to reflect that it was issued “without prejudice.” Id. The trial court concluded that “the signing of the nonsuit ‘with prejudice’ was a ministerial act, which required no judicial reasoning, and could thus be corrected by a judgment nunc pro tunc.” Id. at 877.

On appeal in Galvan, the court vacated the trial court’s order granting judgment nunc pro tunc and reinstated the trial court’s order granting the plaintiffs motion for non-suit with prejudice. Id. at 879. The court reasoned that the trial court could only amend the final written order if there was some evidence that it had, at some point before the order was entered, rendered judgment “without prejudice.” Id. at 878. Without regard to evidence showing that the plaintiff attempted to re-file her suit and therefore logically must have intended to request a non-suit “without” prejudice, the appellate court concluded that the trial court never stated in the record that it had intended to render judgment without prejudice. Id. at 877. The court concluded that, if the judgment entered is the same as the judgment rendered, regardless of whether the rendition was incorrect, a trial court has no nunc pro tunc power to correct or modify the entered judgment after its plenary power expires. Id. There was simply no evidence that the trial court intended to do anything other than grant the motion exactly as the plaintiff had requested. Id. at 878.

Here, the OAG contends that George’s assertion that the parties agreed in January 2004 to set the arrearage at $51,000 as of December 81, 2004 is illogical. Indeed, by definition, to be in “arrears” is to be “behind in the payment of a debt or the discharge of an obligation.” Black’s Law Dictionary 104 (7th ed.1999). An “arrearage” is an unpaid or overdue debt. Id. However, even if the trial court incorrectly rendered judgment, it cannot alter a written judgment that precisely reflects the incorrect rendition. See Escobar, 711 S.W.2d at 232. We must look to the judgment actually rendered and not the judgment that should have been rendered. Id. at 231.

Nothing in the record before us suggests that the trial judge applied his personal recollection of the facts surrounding the Agreed Order to determine the motion for judgment nunc pro tunc. See Riner, 976 S.W.2d at 683. Like Galvan, in which plaintiffs counsel testified that language presented in the motion to the trial court was in error, here, Maria testified that the date of December 31, 2004 stated in the Agreed Order was in error and that she intended for the date to have been December 31, 2003. See Galvan, 897 S.W.2d at 876. Here, as there, there is no evidence in the record that the trial court intended to do anything other than grant the motion exactly as the parties requested, and there is no evidence in the record before us with regard to any prior rendition of judgment. See id. Again, as in Galvan, without such evidence in the record, it is of no consequence which date Maria may have intended in the Agreed Order that she signed or whether this Court can agree that the date that Maria now asserts is, as a matter of logic, the date everyone who signed the Agreed Order prior to presenting it to the trial court must have intended.

As the court concluded in Galvan, if the judgment entered is the same as the judgment rendered, regardless of whether the rendition was incorrect, a trial court has no nunc pro tunc power to correct or modify the entered judgment after its plenary jurisdiction expires. See Galvan, 897 S.W.2d at 877 (applying Escobar, 711 S.W.2d at 232); see also In re Cherry, 258 S.W.3d 328, 333 (Tex.App.-Austin 2008, no pet.) (explaining that “a nunc pro tunc order can only be used to make corrections to ensure that the judgment conforms with what was already determined and not what should have been determined”).

Even an incorrect or unintended rendition of judgment does not constitute an error in the entry or recording of the judgment that can be corrected by a judgment nunc pro tunc. Escobar, 711 S.W.2d at 232; Alford v. Whaley, 794 S.W.2d 920, 922 (Tex.App.-Houston [1st Dist.] 1990, no writ). “The judgment as entered must differ from the judgment as rendered; a nunc pro tune judgment will only serve to ensure that the judgment as rendered is actually entered of record.” See Galvan, 897 S.W.2d at 878 (applying Escobar, 711 S.W.2d at 231). Here, like Galvan, nothing in the record shows that there is a discrepancy between the judgment as rendered and the judgment as entered. See id.; Barton, 178 S.W.3d at 126.

We conclude that the trial court’s signing of the Agreed Order on January 27, 2004 constituted its rendition of judgment. See Galvan, 897 S.W.2d at 878. Because the error complained of was present in the trial court’s rendition of judgment on that day, the error, if any, constituted judicial error. Because an error in the rendition of judgment is always judicial error, we conclude that the trial court erred by granting the OAG’s motion for judgment nunc pro tunc. We hold that the judgment nunc pro tunc is void because it constitutes an attempt to correct a judicial error after the expiration of the trial court’s plenary power.

Accordingly, we sustain George’s issue.

Conclusion

We vacate the trial court’s judgment nunc pro tunc, leaving intact the trial court’s original judgment of January 27, 2004.

Justice KEYES, dissenting.

1 . We recognize that, pursuant to Texas Family Code section 201.007(a)(14), "an associate judge may: ... (14) render and sign: a final order agreed to in writing as to both form and substance by all parties” and that such action "constitutes an order of the referring court.” See Act of May 20, 2003, 78th Leg., R.S., ch. 476, § 1, 2003 Tex. Gen. Laws 1742, 1742 (amended 2007) (current version at Tex. Fam Code Ann. § 201.007(a)(14), (c) (Vernon 2008)) (emphasis added). Pursuant to section 201.007(a)(10), however, an associate judge may instead opt to "recommend an order to be rendered in a case.” See id. (current version at Tex. Fam.Code Ann. § 201.007(a)(10) (Vernon 2008)). Here, the record reflects that the associate judge did precisely that— his order states that he “recommends” that "the proposed order be adopted as the judgment of the court.” (Emphasis added.)

Moreover, because the error complained of in this case appeared in the associate judge’s recommendation, even if the associate judge had chosen to make his recommendation a rendition, appellees cannot prevail because the error would then have appeared in his rendition.