Opinion
No. 05-05-00001-CV
Opinion Filed September 27, 2005.
On Appeal from the 192nd District Court, Dallas County, Texas, Trial Court Cause No. 02-603-K.
Dismiss.
Before Justices MORRIS, WRIGHT, and RICHTER.
MEMORANDUM OPINION
Appellants Del Peterson, D.D. Associates, Inc. and Minera Hesperia S.A. De C.V appeal the trial court's final judgment nunc pro tunc. We set aside the judgment nunc pro tunc as void and dismiss this appeal for want of jurisdiction.
Appellants have not appealed the original judgment in this case. Therefore, we will not address its merits.
Background
The underlying case arises from a contract dispute concerning a piece of mining equipment. Appellee Gunther Stromberger filed suit against Peterson, D.D. Associates, and Minera Hesperia, alleging breach of contract, promissory estoppel, misrepresentation, conversion, and libel. Alternatively, Stromberger alleged that he was entitled to recovery under the theory of quantum meruit. The case was tried to the bench in June of 2003.
The trial court did not orally pronounce its judgment in open court. Instead, on March 3, 2004, the trial judge signed a written judgment that awarded damages (1) against D.D. Associates and Minera Hesperia in the sum of $266,666 for breach of contract; (2) against D.D. Associates and Minera Hesperia in the sum of $266,666 for promissory estoppel; (3) against Peterson, D.D. Associates, and Minera Hesperia in the sum of $266,666 for misrepresentation; and (4) against Peterson and D.D. Associates in the sum of $50,000 for libel.
Appellants subsequently filed a motion for new trial and motion for recusal of the trial judge. The motion for new trial was overruled by operation of law. The trial judge recused himself, and another judge was assigned to the case.
After expiration of the trial court's plenary jurisdiction, appellants filed a bill of review. Stromberger later filed a motion for judgment nunc pro tunc, asserting that the final judgment could cause a miscalculation of damages because it set out several theories of recovery . On November 16, 2004, the judge denied appellants' bill of review and also signed a "final judgment nunc pro tunc." This judgment nunc pro tunc awarded Stromberger damages against D.D. Associates, Minera Hesperia, and Peterson in the amount of $266,666 and against D.D. Associates and Peterson in the amount of $50,000 without reference to any cause of action or theory of recovery. In one issue, appellants challenge the November 2004 judgment nunc pro tunc.
Discussion
Appellants claim that, because the changes made to the March 2004 judgment were not merely clerical corrections, the November 2004 judgment nunc pro tunc is void. Stromberger argues that the November 2004 judgment properly corrected clerical errors in the March 2004 judgment, which did not correctly state the trial court's ruling on damages. We agree with appellants.
A judgment is usually rendered when the trial court officially announces its decision-either in open court or by written memorandum filed with the clerk-on the matter submitted for adjudication. S A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995). But if the trial court signs a judgment without first making an oral pronouncement in open court, the act of signing the judgment is the official act of rendering judgment. Wittau v. Storie, 145 S.W.3d 732, 735 (Tex.App.-Fort Worth 2004, no pet.).
Because the trial court's changes were made outside its plenary jurisdiction, we must determine if the changes were clerical or judicial. See Riner v. Briargrove Park Property Owners, Inc., 976 S.W.2d 680, 682 (Tex.App.-Houston [1st Dist.] 1997, no pet.). A judgment nunc pro tunc may correct only clerical errors after the trial court loses its plenary jurisdiction. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). A clerical error results from inaccurately recording the decision of the court. Dickens v. Willis, 957 S.W.2d 657, 659 (Tex.App.-Austin 1997, no pet.). In other words, a clerical error occurs when the written judgment fails to accurately reflect the judgment rendered. Uvere v. Canales, 825 S.W.2d 741, 743 (Tex.App.-Dallas 1992, orig. proceeding). Correction of clerical error does not effect a substantive change in the original judgment. Id.
On the other hand, a judicial error is an error in the actual rendering of a judgment. Escobar, 711 S.W.2d at 231. A substantive change occurs when a judicial error is corrected because such an error results from judicial reasoning and determination. Dickens, 937 S.W.2d at 659. Thus, if a trial court changes the terms of the original judgment rendered, it is correcting judicial error. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973). A nunc pro tunc judgment made to correct a judicial error is void. Id.
Whether an error is clerical or judicial is a question of law, and we are not bound by the trial court's conclusions as to the nature of an error. See Finley v. Jones, 435 S.W.2d 136, 138 (Tex. 1968). When deciding what type of error was corrected, we look to the judgment actually rendered. Escobar, 711 S.W.2d at 231 . Here, the trial court did not make an oral pronouncement of the judgment in open court or indicate his intentions in a docket sheet entry. The hearing on the motion for judgment nunc pro tunc was not recorded by the court reporter. In this case, the original written judgment and the rendered judgment are the same. The trial court rendered judgment when he signed the written judgment on March 3, 2004. Because this judgment is the only record of the trial judge's intended ruling regarding damages, we must compare the original March 2004 judgment with the nunc pro tunc judgment of November 2004 to determine the type of corrections made by the trial court in its "judgment nunc pro tunc." This comparison reflects that the trial court changed the terms of the original judgment. The March 2004 judgment delineates the causes of action and the amount of damages ordered for each. This original judgment finds only D.D. Associates and Minera Hesperia liable for breach of contract and promissory estoppel, but it finds Peterson, D.D. Associates, and Minera Hesperia liable for misrepresentation. This judgment likewise finds against Peterson and D.D. Associates in the amount of $50,000 for libel.
On the other hand, the November 2004 judgment nunc pro tunc removes the specific theories of recovery for which Stromberger received damages. While it keeps an award of $50,000 against Peterson and D.D. Associates (presumably for libel), the November 2004 judgment essentially reduces his recovery for the remaining damages from $799,998 (3 times $266,666) to $266,666. Because the November 2004 judgment includes Peterson with D.D. Associates and Minera Hesperia in the single award of $266,666 without reference to cause of action, it appears that either (1) the judgment now awards damages for misrepresentation but not for breach of contract or promissory estoppel or (2) the judgment changes Peterson's liability to include breach of contract and/or promissory estoppel in addition to misrepresentation and libel.
Thus, the record before us reflects no evidence that the original written judgment inaccurately recorded the intended judgment of the court. See Riner, 976 S.W.2d at 683 (a judgment nunc pro tunc should be granted if the evidence is clear and convincing that a clerical error was made). Instead, the record shows that the trial court changed the terms of the initial judgment rendered. Such substantive and material changes cannot properly be accomplished by a judgment nunc pro tunc. See id. We conclude that the November 2004 judgment was an attempt to cure a judicial error and is therefore void. See Dallas County v. Sweitzer, 971 S.W.2d 629, 630 (Tex.App.-Dallas 1998, no pet.) (when appeal is taken from a void judgment, the appellate court may declare the judgment void).
Stromberger argues that appellants did not oppose entry of the November 2004 judgment and have therefore waived any complaint about its validity. However, a void judgment is entirely null within itself and cannot be ratified or confirmed. In re Guardianship of B.A.G., 794 S.W.2d 510, 511 (Tex.App.-Corpus Christi 1990) (orig. proceeding). Neither can its nullity be waived. Id. Therefore, we do not agree that appellants have waived their complaint.
Conclusion
We vacate as void the trial court's November 2004 judgment and dismiss this appeal for want of jurisdiction. See Mellon Service Co. v. Touche Ross Co., 946 S.W.2d 862, 864 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (appellate court must set aside a void trial court judgment); see also, Wall Street Deli v. Boston Old Colony Ins. Co., 110 S.W.3d 67, 70 (Tex.App.-Eastland 2003, no pet.) (the appellate court should dismiss an appeal from a void judgment for want of jurisdiction). This leaves intact the original final judgment of March 3, 2004. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).