Summary
reciting that signing of judgment triggers deadlines for filing post-judgment motions and perfecting appeal and starts clock as to trial court’s plenary power
Summary of this case from C.M.C. v. Tex. Dep't of Family & Protective Servs.Opinion
No. 08-21-00043-CV
12-13-2022
Irma PEREZ, Appellant, v. Victor Manuel PEREZ, Jr., Appellee.
Robert L. Edwards, for Appellant. Kirk Cooper, John P. Mobbs, George Mansouraty, for Appellee.
Robert L. Edwards, for Appellant.
Kirk Cooper, John P. Mobbs, George Mansouraty, for Appellee.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
GINA M. PALAFOX, Justice
In this case, Appellant Irma Perez (Irma) argues the district court erred in rendering a judgment nunc pro tunc that corrects judicial error, not clerical error, after expiration of its plenary power. Countering, Appellee Victor Manuel Perez Jr., (Victor) presents two arguments. First, he argues that, because Irma had earlier filed a plenary-power-extending motion, the period of the district court's plenary power had not expired, and substantive changes by the court were permitted. In the event the plenary power had expired, he alternatively argues the district court's judgment nunc pro tunc merely corrected clerical error, not judicial error. We conclude the trial court erred in entering the judgment nunc pro tunc and vacate that judgment, leaving intact the trial court's original judgment.
Because the parties share the same surname, we refer to each by their first name only for clarity and succinctness.
I. BACKGROUND
Irma and Victor were married and had two children during their marriage, S.A.P. and A.B.P. On April 13, 2017, the parties signed, and the trial court rendered, an agreed final decree of divorce and order for conservatorship and child support. Before expiration of thirty days, however, Irma filed a motion for new trial asserting two grounds. First, based on a mutual mistake, she claimed the parties had not properly addressed and divided a business asset owned during their marriage. She claimed they failed to comply with the terms of an insurance agency agreement, which was needed to accomplish their agreed division of property. Without a new trial, she alleged the mutual mistake placed the agency in danger of franchise revocation under the terms of the agency agreement. Second, Irma alleged a new trial was needed because the orders pertaining to the access and possession of the children failed to consider the children's needs. On June 14, 2017, the trial court rendered an agreed order, signed by counsel for both parties as to form and content, granting a partial motion for new trial "as to the issue of the division of property." Additionally, as to the possession by Victor of the minor child, S.A.P., the order stated: "the parties agree to modify the possession of S.A.P. to the agreement of the child. No Other change to conservatorship is made."
Redacted pleadings indicate S.A.P. was born in 2003 while A.B.P. was born in 2013.
On September 28, 2017, before any other proceedings were held, Irma next filed a motion to modify the parent-child relationship. She identified the agreed final decree of divorce and order for conservatorship and child support of April 2017 as the order subject to her modification request. Irma alleged there had been substantial changes in the circumstances of the parties and their oldest child, S.A.P. She claimed S.A.P.’s present environment with Victor endangered the child's physical health or significantly impaired the child's emotional development. She further asserted the agreed conservatorship order did not include permanent injunctions enjoining parties from discussing litigation with the children. Irma also asked for review of the times of possession and access of the parties’ youngest child. Although Irma initially sought two modifications of the prior order, she later amended her motion, seeking four modifications as follows: (1) for the trial court to include standard injunctions against interference in the parent-child relationship; (2) for the trial court to review the times of possession and access of the youngest child; (3) for duties and responsibilities to be assigned to the individual conservators; and (4) for the trial court to order Victor to pay child support.
Consolidating both the partial new trial and modification, the trial court held a final hearing over two settings, on August 2, 2018, and September 25, 2018, respectively. Following the conclusion of the hearing, on December 17, 2018, presiding Judge Laura Strathmann of the 388th District Court sent a letter to the parties, containing a bullet list of rulings addressing "a fair and just division of the community estate." The letter ruling also provided notice that the matter was set for entry of judgment, by submission, on January 25, 2019. No order or judgment in our record, however, aligns with this submission date.
We discuss in more detail below the substance of the parties’ pleadings, requests, and trial court's different rulings leading up to the appeal.
Instead, on February 14, 2019, Irma filed a pleading titled, "Motion to Clarify Letter Ruling," asserting two grounds. First, she contended that clarification was needed on two issues related to the parties’ division of the marital estate. Second, she informed the trial court that its letter ruling had not addressed Irma's request for relief regarding the modification of the parent-child relationship. On March 29, 2019, the trial court received argument from both sides regarding the contested entry of judgment and the motion to clarify the letter ruling. About a year and half later, on October 5, 2020, the trial court sent the parties a notice directing them to submit proposed orders in the cause, on October 19, 2020, at 11:00 a.m. Day's prior, a new attorney had entered an appearance for Irma. On October 19, 2020, Irma complied with the court's directive, submitting a proposed order granting the modification of the final decree of divorce. Victor neither submitted his own proposed order nor filed an objection with the trial court.
Next, the record shows the trial court signed and filed an "Order Granting Modification of Final Decree of Divorce" (the Modification Order), though the date of signing is a bit uncertain. In briefing, Irma claims Judge Strathmann signed the Modification Order on November 5, 2020, as a final disposition, as noted on the court's docket. Victor's brief indicates he reads "the handwritten date on the order to be November 8, but it could be read as November 5 or November 6." In either event, he claims the difference between the three dates is not material to any arguments on appeal. Guided by the case summary prepared by the district clerk, as well as the parties’ claims, we conclude the Modification Order was signed on November 5, 2020.
Within its opening lines, the Modification Order referenced the procedural posture of the case including that the trial court had earlier granted a partial motion for new trial as to the division of property, and issues affecting the parent-child relationship; and, referencing that Irma had requested a modification of a prior, agreed order regarding the parent-child relationship. Thus, in substance, the Modification Order addressed matters connected with the parties’ division of property, conservatorship of the children, child support, and access and possession of the children, among its several provisions.
After January 1, 2021, the newly elected judge of the 388th District Court of El Paso County assumed office as presiding judge. On January 12, 2021, Victor then filed an unsworn pleading titled, "Motion to Modify, Correct, or Reform Judgment, or in the Alternative, Motion for Judgment Nunc Pro Tunc." The motion asserted it was presented within the time allowed by law for post-judgment motions. More specifically, Victor alleged, "the judgment in this case having been rendered on November 9, 2020[,] but notice of the Judgement [sic] was not provided to [Victor] or his counsel until January 11, 2021." Additionally, he asserted the judgment (Modification Order) rendered in November 2020 was inaccurate based on the letter ruling of December 17, 2018.
Irma filed a response in opposition to Victor's motion based on several grounds. First, she asserted the trial court had lost plenary power as a matter of law and, thus, it lacked jurisdiction to modify, correct or reform the challenged order. Second, she pointed out that Victor's unsworn motion failed to meet the requirements of Rule 306a(b) of the Texas Rules of Civil Procedure, such that it failed to extend the court's plenary power over the matters addressed. Third, she argued Victor had waived any objections to the Modification Order, by not filing objections to Irma's proposed order, or by submitting his own proposed order as ordered by the court. Fourth and finally, she urged the court's order granting modification of the parties’ final decree of divorce was consistent with Irma's pleadings, that Victor presented no legal authority, evidence, or testimony in support of his claim of error, and the unfiled letter from the court regarding property division did not itself qualify as a judgment, nor did it address child support, conservatorship, custody, or possession.
The trial court held a non-evidentiary hearing on February 8, 2021. Afterwards, Irma filed additional briefing opposing Victor's motion to modify or correct judgment. On February 12, 2021, the trial court issued a written order vacating and setting aside the Modification Order based on clerical error. Within that ruling, the trial court also ordered Victor "to file a new Order Regarding Modification of Agreed Final Decree of Divorce that incorporates only the 4 property items ruled upon by Judge Strathmann in her December 17, 2018[,] letter ruling." On March 12, 2021, the trial court signed a "Final Decree of Divorce after Motion for New Trial and Judgment Nunc Pro Tunc" (the March 2021 Decree). Among other terms, the decree provided it superseded the Modification Order, signed November 5, 2020, and filed November 9, 2020.
Subsequently, Irma gave timely notice of this appeal challenging: (1) the order of February 12, 2021, granting Victor's motion for judgment nunc pro tunc; and (2) the trial court's signing of the March 2021 Decree.
II. ISSUES ON APPEAL
Irma presents two issues on appeal. First, based on Victor filing an unsworn motion to modify or correct judgment after expiration of the trial court's plenary power, she argues the court lacked jurisdiction to hold a hearing, even a hearing limited to Victor establishing the date when he received notice of the signed judgment of November 5, 2020. Second, Irma argues the March 2021 Decree improperly corrected judicial error after the trial court's plenary power had expired. As to both issues, Irma essentially argues the March 2021 Decree is void and of no legal effect.
We address each issue in turn.
III. THE TRIAL COURT'S PLENARY POWER
In her first issue, Irma contends the trial court lacked jurisdiction to conduct a hearing on February 8, 2021, after expiration of its plenary period. On that basis, she argues this Court should declare void and vacate the order of February 12, 2021, which granted Victor's motion to modify or correct judgment. As well, she requests we reinstate the March 2021 Decree. In opposition, Victor argues the trial court's plenary power had not expired. As a result, he contends the court's order of February 12, 2021, and the final decree of divorce and judgment nunc pro tunc rendered in March 2021, are both valid and enforceable.
A. Standard of Review and Applicable Law
Texas courts have long recognized that "trial courts retain plenary power over their judgments until they become final, and during that time, the court may grant a new trial or vacate, modify, correct, or reform the judgment[.]" In re Panchakarla , 602 S.W.3d 536, 539 (Tex. 2020) (orig. proceeding) (internal citations omitted). A judgment is final if it (1) unequivocally states that it disposes of all parties and claims or (2) actually disposes of all parties and claims. Matter of Guardianship of Jones , 629 S.W.3d 921, 924 (Tex. 2021) ; In re Elizondo , 544 S.W.3d 824, 825–26 (Tex. 2018). "The rendition of judgment is a present act, either by spoken word or signed memorandum, which decides the issues upon which the ruling is made." Interest of L.A.-K. , 596 S.W.3d 387, 394 (Tex. App.—El Paso 2020, no pet.). "A trial court renders judgment orally when it announces rendition as a present act and not as an ‘intention to render judgment in the future.’ " State v. Naylor , 466 S.W.3d 783, 788 (Tex. 2015) (citing S & A Rest. Corp. v. Leal , 892 S.W.2d 855, 857 (Tex. 1995) ). The date the judgment or final order is signed starts the deadlines for filing post judgment motions and for perfecting an appeal. TEX. R. CIV. P. 306a(1). The period of the court's plenary power to change the judgment is also calculated from the date the final judgment is signed. TEX. R. CIV. P. 329b(e).
When a final judgment or other appealable order is signed, the clerk of the court must immediately give notice to the parties or their attorneys of record advising that the judgment or order was signed. See TEX. R. CIV. P. 306a(3). The Texas Rules of Civil Procedure provide that a trial court has plenary power for thirty days after the judgment is signed to otherwise grant a new trial or to vacate, modify, correct, or reform the judgment. See TEX. R. CIV. P. 329b(d) ; Pollard v. Pollard , 316 S.W.3d 246, 251 (Tex. App.—Dallas 2010, no pet.). The filing of a motion for new trial or a motion to modify, correct, or reform the judgment within the initial thirty-day period extends the trial court's plenary power over its judgment up to an additional seventy-five-days, depending on when or whether the court acts on the motion. See TEX. R. CIV. P. 329b (c), (e), (g). Once the trial court's plenary power expires, the trial court generally cannot sign, in the same case, an order in which the court sets aside, vacates, modifies, corrects, or reforms its judgment, and an order in which it does is generally void. Middleton v. Murff , 689 S.W.2d 212, 213–14 (Tex. 1985) ; In re Martinez , 478 S.W.3d 123, 126 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Yet, an exception applies, if within twenty days after the judgment or other appealable order is signed, a party adversely affected by it, or his or her attorney, have neither received the notice required nor acquired actual knowledge of the signing of the judgment as required by Rule 306a(4). See TEX. R. CIV. P. 306a(4). In that case, the trial court's plenary power will be extended, and the usual appellate timetables will not begin to run, until the party or their attorney receives notice from the clerk of the court or acquires actual knowledge of the judgment. Id. Accordingly, all the periods shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing of the judgment, whichever occurred first, but in no event will the running of the timetable begin more than ninety days after the signing of the original judgment. Id.
To establish the application of Rule 306a(4), the party adversely affected must:
(a) not have received notice or actual knowledge within twenty days after the judgment was signed,
(b) not have received notice or have acquired actual knowledge within ninety days after the judgment was signed, and
(c) prove in the trial court, on sworn motion and notice, the date on which the party first acquired notice or actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.
TEX. R. CIV. P. 306a(4) and (5) (emphasis added). "Compliance with the provisions of Rule 306a is a jurisdictional prerequisite." Carrera v. Marsh , 847 S.W.2d 337, 342 (Tex. App.—El Paso 1993, no writ).
B. Analysis
The Modification Order resolving all issues and claims was signed on November 5, 2020, then filed on November 9, 2020. Within its provisions, this order expressly provides as follows:
IT IS ORDERED AND DECREED THAT all relief requested in this case and not expressly granted is denied. This is a final judgment, for which let execution and all writs and processes necessary to enforce this judgment issue. This judgment finally disposes of all claims and all parties and is appealable.
Because the judgment unequivocally states that it disposes of all parties and claims, it meets the requirements of a final judgment. In re Guardianship of Jones , 629 S.W.3d at 924 ; In re Elizondo , 544 S.W.3d at 825–26.
Pursuant to Rule 329b(d) of the Texas Rules of Civil Procedure, a trial court has plenary power for thirty days after the judgment is signed to otherwise grant a new trial or to vacate, modify, correct, or reform the judgment. See TEX. R. CIV. P. 329b(d). Here, based on the signing of the Modification Order on November 5, 2020, the trial court's plenary power ended thirty days later, on December 5, 2020. Id. Yet, more than a month beyond that date, on January 12, 2021, Victor filed an unsworn motion to modify, correct, or reform judgment, or to issue a nunc pro tunc judgment. No affidavit was attached to the motion. At the hearing that followed, Victor further failed to put on sworn testimony or admit evidence establishing when he received notice of the trial court's signing of the Modification Order. Thus, he failed to establish a prima facie case identifying a specific date of when he received notice or had actual knowledge of the trial court's final judgment. See TEX. R. CIV. P. 306a(5) (stating that in order to establish late notice, "the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed"). As a result, Victor failed to establish that he received late notice of the signing of the Modification Order and the exception provided by TEX. R. CIV. P. 306a(4) does not apply.
Victor, however, does not contend that he satisfied any of these jurisdictional requirements. Instead, he presents a wholly different argument wherein he ultimately claims the trial court acted within its plenary power when it vacated the Modification Order after December 5, 2020. To begin, Victor does not rely on his unsworn motion filed on January 12, 2021; rather, he claims that Irma's own motion to clarify extended the court's plenary power, although it was filed more than a year before the trial court's signing of the Modification Order. As noted earlier, a trial court's plenary power expires thirty days after a judgment is signed. TEX. R. CIV. P. 329b(d). But this deadline does not apply when a plenary-power extending motion is filed by any party. See TEX. R. CIV. P. 329b(e), (g). When such qualifying motions are filed, the trial court's plenary power is extended until thirty days after all such timely-filed motions are overruled, either expressly or by operation of law. Id. ; In Interest of P.J.P.R. , 508 S.W.3d 588, 590 (Tex. App.—El Paso 2016, no pet.). Victor argues that Irma's motion to clarify qualified as a plenary-power-extending motion to modify the judgment under Rule 329b. For several reasons, we disagree.
First, Irma's motion to clarify was directed at the letter ruling, not the Modification Order. Courts have generally not accorded final-judgment status to letter rulings. In Interest of B.W.S. , No. 05-15-01207-CV, 2016 WL 7163866, *2 (Tex. App.—Dallas Nov. 28, 2016, no pet.) (mem. op.). Because the letter ruling is absent of any language indicating it disposed of all claims, it does not meet the first prong of requirements to be deemed a final judgment. See In re Guardianship of Jones , 629 S.W.3d at 924 ; In re Elizondo , 544 S.W.3d at 825–26. In substance, the letter ruling required the parties to prepare a written judgment and it also set an entry of judgment by submission date. Heinrich v. Heinrich , No. 07-19-00265-CV, 2019 WL 3884461, at *1 (Tex. App.—Amarillo Aug. 16, 2019, no pet.) (per curiam) (mem. op.) (holding that, because trial court's letter ordered the parties to "prepare the Final Order of the Court and submit same to the court and opposing party for approval as to form and consistent with this letter ruling," the letter ruling was not intended by the trial court to be a final judgment and therefore was not a final judgment); see also Greene v. State , 324 S.W.3d 276, 281–82 (Tex. App.—Austin 2010, no pet.) (holding letter to parties describing court's findings and asking party to prepare judgment insufficient to serve as appealable order). When a trial court announces an intent to render judgment in the future, it has not yet rendered judgment. Interest of L.A.-K. , 596 S.W.3d at 394.
As for the second prong, the letter ruling failed to include rulings on several contested issues: conservatorship, possession, child support, the ownership of the Allstate business, and certain bank accounts. Pending at the time, Irma had a live pleading requesting modification of conservatorship and rights of possession of A.B.P., and she brought her requests to the trial court's attention by seeking clarification. From this record, we cannot conclude the letter ruling disposed of all claims and requests for relief. McFadin v. Broadway Coffeehouse, LLC , 539 S.W.3d 278, 283 (Tex. 2018). The Supreme Court of Texas held "that a timely filed postjudgment motion that seeks a substantive change in an existing judgment qualifies as a motion to modify under Rule 329b(g), thus extending the trial court's plenary jurisdiction and the appellate timetable." Lane Bank Equip. Co. v. Smith S. Equip., Inc. , 10 S.W.3d 308, 314 (Tex. 2000). Relative to the letter ruling, the motion to clarify was not a plenary-power-extending motion.
Even so, Victor contends Irma's motion to clarify sought a substantive change to the judgment rendered by the trial court, "whether that judgment was rendered by the Letter Ruling or the Modification Order." He argues the circumstance of the motion being filed before the Modification Order was signed does not prevent it from acting to extend the trial court's plenary power under Rule 329b. He contends the motion was prematurely filed and is deemed filed on the date of, but after, the signing of the judgment the motion assails. TEX. R. CIV. P. 306c. We disagree. In substance, Irma's motion to clarify only assails the letter ruling. Additionally, filed on February 14, 2019, Irma's motion was filed more than 600 days before the signing of the Modification Order. It would be speculative, if not impossible, to assail a judgment that was not yet in existence or otherwise prepared.
We conclude the motion to clarify was not a plenary-power-extending motion. The trial court's Modification Order was final as of November 5, 2020, the day it was signed. As a consequence, plenary power was set to expire on December 5, 2020. During that period, no plenary-power extending motions were filed by either party. The trial court then entered the March 2021 order, well past the expiration of its plenary power. Because we conclude the trial court's plenary power had expired, and Victor failed to otherwise establish late notice of receiving the signed judgment, no extension applied and the trial court lacked jurisdiction after December 5, 2020. Accordingly, the trial court's order dated February 12, 2021, is void.
We sustain Irma's first issue.
IV. WHETHER THE TRIAL COURT CORRECTED A CLERICAL ERROR
In Irma's second issue, she argues the "Final Decree of Divorce after Motion for New Trial and Judgment Nunc Pro Tunc," dated March 12, 2021, improperly corrected judicial error after expiration of the trial court's plenary power. This argument requires us to look to the difference in the substance of the orders and determine whether a clerical error existed.
A. Standard of Review and Applicable Law
We review de novo the validity of a judgment nunc pro tunc. Escobar v. Escobar , 711 S.W.2d 230, 232 (Tex. 1986). A trial court in the same case may sign an order rendering judgment nunc pro tunc to correct a clerical error in the record of the judgment. TEX. R. CIV. P. 329b(f). After expiration of the trial court's plenary power, a judgment nunc pro tunc can be used only to correct clerical errors, not judicial errors. Escobar , 711 S.W.2d at 231 ; In Interest of A.M.R. , 528 S.W.3d 119, 122 (Tex. App.—El Paso 2017, no pet.). "The salient distinction between ‘clerical’ and ‘judicial’ errors lies in the exercise of the judgmental offices of the court." Andrews v. Koch , 702 S.W.2d 584, 585 (Tex. 1986). A clerical error is one that does not result from judicial reasoning or determination. In Interest of A.M.R. , 528 S.W.3d at 122. "Stated differently, a clerical error is a discrepancy between the judgment in the record and the judgment actually rendered." Id. In contrast, a judicial error is one that occurs from rendering judgment, and because of a mistake of law or fact, it involves additional judicial reasoning. Andrews , 702 S.W.2d at 586.
"When deciding whether a correction is a judicial or a clerical error, we look to the judgment actually rendered, not the judgment that should or might have been rendered." Jenkins v. Jenkins , 16 S.W.3d 473, 482 (Tex. App.—El Paso 2000, no pet.). The party claiming a clerical error must show, by clear and convincing evidence, that "the trial judge intended the requested result at the time the original judgment was entered." In Interest of A.M.R. , 528 S.W.3d at 122 (quoting In re Heritage Operating, L.P. , 468 S.W.3d 240, 247 (Tex. App.—El Paso 2015, no pet.) ). "This high burden insures that trial judges can correct their clerical mistakes" and prevents using a judgment nunc pro tunc as "a vehicle to circumvent the general rules regarding the trial court's plenary power if the court changes its mind about its judgment." In re Heritage Operating, L.P. , 468 S.W.3d at 247. "Evidence may be in the form of oral testimony of witnesses, written documents, the court's docket, and the judge's personal recollection." Pruet v. Coastal States Trading, Inc. , 715 S.W.2d 702, 705 (Tex. App.—Houston [1st Dist.] 1986, no writ). If a trial judge corrects the judgment nunc pro tunc, a presumption arises that the trial judge's personal recollection supports the finding of clerical error. Id.
B. Analysis
Irma asserts Victor failed to prove by clear and convincing evidence that a clerical error existed. In response, Victor maintains that the differences between the letter ruling and the Modification Order constituted clerical errors that the trial court's March 2021 Decree corrected.
The trial court's letter ruling indicated the court found the following was a fair and just division of the community estate:
• 1/2 net equity of the value of the home to each after either refinance within 90 days or sale thereafter.
• Each party is to receive 1/2 of the insurance commissions as a result of the inception of a policy during the marriage; the award of the 1/2 commission shall continue for as long as said policy remains in effect. Each party is responsible for 1/2 of the payment for the license payment during the marriage. In the event the commissions during the time after the agency was acquired until the date of divorce are greater than the payments for the Allstate license, Husband will be granted a judgment for the amount. In the event the agency license payments are greater than the commissions, Wife will be granted a judgment for the deficiency.
• The 401K net proceeds shall be split equally between the parties.
• Each will keep the personal effects, household goods, and furnishings in their respective possession.
Victor's motion asserted multiple provisions were "wholly inaccurate based on" the letter ruling, specifically: (1) the Modification Order appointed Irma as sole managing conservator which conflicted with the letter ruling of not modifying the conservatorship; (2) the Modification Order awarded Victor possession and access in accordance with the Standard Possession Order which conflicted with the letter ruling which did not modify the possession and access of A.B.P.; (3) the Modification Order ordered Victor to pay Irma child support in the amount of $1003.60 per month which conflicted with the letter ruling that did not modify the child support obligation; (4) the Modification Order ordered the marital residence to be placed on the market within ninety days which conflicted with the letter ruling that either could refinance within ninety days; (5) the Modification Order awarded all sums of cash in the Wells Fargo account ending in 1819 to Irma was in conflict with the letter ruling which did not award the account to Irma; and (6) the Modification Order awarded 100% of IPerez, Inc. to Irma which conflicted with the letter ruling awarding 1/2 of the insurance commissions to each.
In support of his argument, Victor cites to two cases where the appellate court upheld a judgment nunc pro tunc. First, this Court upheld a judgment nunc pro tunc as correcting a clerical error. Kohannim v. Katoli , 440 S.W.3d 798, 807 (Tex. App.—El Paso 2013, pet. denied), disapproved on unrelated grounds by Ritchie v. Rupe , 443 S.W.3d 856 (Tex. 2014). In that case, the trial court sent a letter to the parties stating the court was granting declaratory relief. Id. About two months later, the trial court entered a final judgment that did not include the declaratory relief. Id. The trial court entered a judgment nunc pro tunc granting the declaratory relief. Id. This Court affirmed, concluding the trial court's letter constituted a rendition of judgment with respect to declaratory relief but a clerical error caused the final judgment to leave out the relief. Id. at 808.
Second, in A.M.R. , the trial court orally rendered, at the conclusion of a final hearing, that a geographic restriction to El Paso County would apply. In Interest of A.M.R. , 528 S.W.3d at 121. The final judgment was signed over a month later including a geographic restriction to El Paso County, but also including a provision that the restriction be lifted if the father did not reside in El Paso County. Id. Upon a motion from father, the trial court granted the judgment nunc pro tunc deleting the language it did not order in the final hearing, that is, the conditional geographic restriction language. Id. at 121–22. This Court affirmed the judgment holding the written judgment did not reflect the trial court's rendition of judgment based on statements made and not made by the trial court. Id. at 123.
Victor claims his cited cases demonstrate that no evidence beyond the trial court's file was needed to establish a clerical error. We disagree. First, the facts of the present case are distinguishable because the Modification Order was signed almost two years after the letter ruling. During those two years, Irma filed a motion to clarify, and a contested entry of judgment was then heard. Also, this case does not involve the ruling on one request, like declaratory relief or a geographic restriction. Rather, Victor complains about multiple provisions in the Modification Order, some of which the letter ruling had not addressed. Additionally, looking at the burden to show by clear and convincing evidence that the trial judge intended the requested result at the time the original judgment was entered, we conclude Victor did not meet this high burden. In re Catholic Diocese of El Paso (San Lorenzo Church) , 465 S.W.3d 808, 815 (Tex. App.—El Paso 2015, orig. proceeding). Victor asserts the trial court could have taken judicial notice of its record and determined that a different judgment than the one intended was entered. He relies on emails exchanged between counsel to show Irma's counsel—newly retained counsel after the final hearing—was unaware of the trial court's letter ruling. However, given the specific circumstances of this case, we conclude that more was needed.
Here, Judge Strathmann, the predecessor judge, presided over the final hearing and sent the letter ruling. Then, following Irma's motion to clarify, Judge Strathmann presided over a contested entry of judgment hearing before entering a final judgment. After these events, Judge Gonzalez took the bench, concluded a clerical error existed, and entered a judgment nunc pro tunc. Judge Gonzalez did not have the benefit of the presumption that her personal recollection supported the finding of clerical error because she had not presided over the hearings that led to either the letter ruling or the Modification Order. Pruet , 715 S.W.2d at 705. Victor provided no evidence that Judge Strathmann—after receiving Irma's motion to clarify and hearing argument of counsel—had not amended or modified the earlier ruling. See S.L. v. S.L. , No. 02-19-00017-CV, 2020 WL 4360448, at *9 n.5 (Tex. App.—Fort Worth July 30, 2020, no pet.) (mem. op.) ("Courts may treat differences between a letter ruling and a final, signed decree as modifications within the trial court's plenary power."); Stallworth v. Stallworth , 201 S.W.3d 338, 349 (Tex. App.—Dallas 2006, no pet.) ("[T]he difference between the trial court's statement from the bench and its final divorce decree should actually be considered a modification that was well within the plenary power of the trial court at the time."). Absent evidence that Judge Strathmann intended a different ruling, Victor failed to establish a clerical error existed. In re Heritage Operating, L.P. , 468 S.W.3d at 247.
We conclude Victor failed to establish, by clear and convincing evidence, that the Modification Order did not reflect the trial court's intended ruling. As to the conservatorship, possession, and child support provisions, Victor failed to show the trial court intended to deny Irma's requests regarding conservatorship when it left out any ruling in the letter ruling. As to the ownership of the Allstate business, the letter ruling was silent as to who, and in what percent, it awarded shared property. The letter ruling also failed to award bank accounts to either party. Later, however, the trial court requested each party to submit proposed judgments. After Irma complied, the trial court signed the Modification Order, without objection by Victor during the court's plenary period.
Courts have held that where a judgment is prepared by an attorney and signed and entered by the court, it becomes the judgment of the court. Stock v. Stock , 702 S.W.2d 713, 716 (Tex. App.—San Antonio 1985, no writ). "Recitations or provisions alleged to have been inserted or omitted by a mistake of the attorney are nevertheless part of the court's judgment." Id. (citing Dikeman v. Snell , 490 S.W.2d 183 (Tex. 1973) ). "A judgment nunc pro tunc cannot ‘re-adjudicate or rewrite and change the decretal portion of the judgment as rendered.’ " Id. Erroneous recitals contained in a judgment are viewed as judicial errors and cannot be cured by a nunc pro tunc proceeding after the judgment is final. Id. (citing Finlay v. Jones , 435 S.W.2d 136 (Tex. 1969) ); see also Interest of M.U.C.O. , No. 04-21-00280-CV, 2022 WL 3638255, at *10 (Tex. App.—San Antonio Aug. 24, 2022, no pet.) (mem. op.) (holding the omission of a notice provision was the court's judgment when there was no evidence of a rendition by the trial court relating to notice prior to the entry of the signed judgment). We conclude Victor failed to establish the trial court merely corrected clerical error when entering the March 2021 Decree.
We sustain Irma's second issue.
V. CONCLUSION
We vacate the trial court's judgment nunc pro tunc dated March 12, 2021, leaving intact the trial court's original judgment of November 5, 2020.