Opinion
No. 04-05-00360-CV
Delivered and Filed: May 10, 2006.
Appeal from the 45th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-14961, Honorable Janet Littlejohn, Judge Presiding.
Reversed and Remanded.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Greater Helotes Little League (GHLL) appeals the judgment signed by the trial court on March 28, 2005. We reverse the trial court's judgment and remand the cause with instructions.
1. We first address the motion to dismiss filed by appellees, Fred Kempf and Lewis Urbany, who contend this appeal should be dismissed because "GHLL has accepted the benefits of the judgment." We disagree. Under the acceptance of the benefits doctrine, a litigant "cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom." Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). The judgment decrees that Kempf is the owner of the property at issue and that GHLL used the property pursuant to a lease that expired in March 2004. The judgment requires Kempf to lease the property to GHLL under specified terms and imposes other requirements on the parties. Kempf and Urbany contend "GHLL has . . . accepted the core benefit that it was awarded in the judgment" by "continu[ing] [to use] the property for its games and practices and events," although, according to Urbany's affidavit, GHLL has refused to sign a lease and failed to perform its obligations under the judgment. Urbany's affidavit establishes that GHLL occupies the land as a hold-over tenant and has refused to accept the "core benefit" of the judgment the right to legally occupy the property under a lease. Accordingly, appellees have not shown that GHLL has accepted the benefits of the judgment and we deny the motion to dismiss.
2. GHLL argues the trial court erred in signing a judgment that contains provisions that do not conform to the parties' settlement agreement. We agree. On February 28, 2005, the parties dictated their settlement agreement into the record. After ascertaining that the parties intended to be bound by the agreement, the court stated, "Then I will approve the settlement that y'all have entered into, and I will pronounce and render judgment on the settlement making it final today." On March 28, 2005, the trial court signed an "Agreed Final Judgment." The March 28, 2005 signed judgment varies from the agreement approved by the court on February 28, 2005 and imposes restrictions on GHLL's use of the property that were not included in the agreement.
For example, the March 28 judgment includes a provision that "[t]he property is not to be used for any purpose or by any party other than the Greater Helotes Little League." The agreement read into the record February 28 does not preclude GHLL from allowing others to use the property.
By its oral pronouncement on February 28, 2005, the trial court rendered judgment in conformity with the agreement the parties dictated into the record. See Garza v. Tex. Alcoholic Beverage Comm'n, 89 S.W.3d 1, 6 (Tex. 2002); Patel v. Eagle Pass Pediatric Health Clinic, 985 S.W.2d 249, 252 (Tex.App.-Corpus Christi 1999, no pet.); Keim v. Anderson, 943 S.W.2d 938, 942-43 (Tex.App.-El Paso 1997, no writ). The oral judgment was "effective immediately, and the signing and entry of the judgment [were] only ministerial acts." Wittau v. Storie, 145 S.W.3d 732, 735 (Tex.App.-Fort Worth 2004, no pet.) (citing Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex. 1969)). Unless the trial court set aside the February 28 agreed judgment, it was obligated to sign a judgment that strictly and literally complied with that agreement; the court had no power to supply additional terms. See Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976); Keim, 943 S.W.2d at 946; McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex.App.-Dallas 1992, writ denied). The March 28 "Agreed Final Judgment" purports to be based on the agreement announced February 28, and on which judgment was rendered. There is nothing in the record to suggest that the parties agreed or that the trial court intended to set aside or modify the previously-rendered judgment. Because the March 28 judgment does not strictly conform to the terms of the agreed judgment rendered on February 28, it is void and unenforceable. See Patel, 985 S.W.2d at 252; Reppert v. Beasley, 943 S.W.2d 172, 175 (Tex.App.-San Antonio 1997, no writ).
3. Kempf and Urbany argue that GHLL waived its right to complain of the variance by failing to bring the complaint to the attention of the trial court. We disagree. "When the judgment signed by the judge does not correspond to the judgment rendered . . . the trial court has the inherent power to correct the judgment, so that it accurately reflects the judgment rendered." Petroleum Equip. Fin. Corp. v. First Nat'l Bank of Fort Worth, 622 S.W.2d 152, 154 (Tex.App.-Fort Worth 1981, writ ref'd n.r.e.) (citing Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912)). "When a prior judicial determination is evidenced, but the signed judgment inaccurately reflects the true decision of the court, the error is clerical and may be corrected" "after a judgment has become final." Andrews v. Koch, 702 S.W.2d 584, 586-87 (Tex. 1986); see Truelove v. Truelove, 266 S.W.2d 491, 493-94 (Tex.Civ.App.-Amarillo 1953, writ ref'd). Because the trial court may correct the record at any time to reflect the true judgment of the court, preservation of the complaint was not required. An appellate court, on its own motion, can reform the judgment to make the record speak the truth. See Asberry v. State, 813 S.W.2d 526, 531 (Tex.App.-Dallas 1991, pet. ref'd) (en banc) (holding that court of appeals has duty to reform judgment "to make the record speak the truth . . . and such duty is not dependent upon a request by either party or whether they objected and preserved error in the trial court"); see also French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992) (adopting the reasoning and holding of Asberry).
4. Kempf and Urbany request sanctions for a frivolous appeal. Because GHLL had reasonable grounds to believe the appeal would be successful, we deny the motion.
We reverse the trial court's March 28, 2005 judgment and remand the cause to the trial court with instructions to sign a judgment that strictly conforms to the agreed judgment rendered February 28, 2005. See Tinney v. Willingham, 897 S.W.2d 543, 545 n. 2 (Tex.App.-Fort Worth 1995, no writ).