Summary
correcting misprint of "Jeffrey Gooch" to "Jeffery Gooch"
Summary of this case from Harrison v. J.W. NelsonOpinion
No. 10-05-00069-CV
Opinion delivered and filed February 15, 2006.
Appeal from the 141st District Court, Tarrant County, Texas, Trial Court No. 141-189833-01.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
(Chief Justice GRAY concurs only in the judgment, not the opinion. Chief Justice GRAY further notes that for comparative purposes, this is a case in which the appellant should be notified to explain why it is not a frivolous appeal subject to sanctions. See WALSTON V. STEWART, No. 10-05-00135-CV, 2006 WL 133610 (Tex.App.-Waco, Jan. 18, 2006, no pet. h.) (GRAY, C.J., dissenting)).
MEMORANDUM OPINION
Appellant, Jeffery D. Gooch, appeals the trial court's granting of a nunc pro tunc judgment in favor of Appellees, Michael Morris and Belinda Morris. We will affirm the judgment of the trial court.
BACKGROUND
Appellees obtained judgment against Nancy and Pat Trebesch in a breach of contract suit. Gooch signed a supersedeas bond as a surety for the Trebesches. The bond correctly reflected the spelling of Appellant's name as Jeffery Gooch. The judgment was affirmed by the Second Court of Appeals. Appellees sought to add Gooch to the judgment by filing a Motion to Modify the Judgment and Mandate with the Second Court of Appeals. TEX. R. APP. P. 43.5. The court of appeals granted the motion and modified the judgment but incorrectly spelled his name as Jeff rey D. Gooch as opposed to Jeff ery D. Gooch.
Gooch raised the incorrect spelling of his name as a defense to the judgment and filed a Motion to Dismiss for Lack of Jurisdiction. Appellees filed a Motion to Correct an Error in the Judgment and Mandate with the Second Court of Appeals and requested that the court correct the misspelling. Without explanation, the court of appeals denied the Motion to Correct. Appellees then filed a Motion to Correct the Judgment with the trial court requesting that the court correct the error nunc pro tunc. The trial court denied the Motion to Dismiss, granted the Motion to Correct, and entered a Judgment Nunc Pro Tunc.
Gooch brings three issues on appeal. First, he argues the trial court lacked jurisdiction to enter an order and judgment to correct the judgment of the court of appeals. Second, he argues the trial court abused its discretion by ignoring or interpreting the mandate of the court of appeals. Finally, he argues the trial court erred in denying his Motion to Dismiss.
JUDGMENT NUNC PRO TUNC
A trial court has plenary power to reverse, modify, or vacate its judgment at any time before it becomes final. Tex. R. Civ. P. 329b; Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978). However, once the trial court's plenary power ceases, the judgment can only be modified in the case of a clerical error. See TEX. R. CIV. P. 316, 329b; Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986). The trial court can correct such clerical errors by a judgment nunc pro tunc. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986).
A clerical error does not result from judicial reasoning or determination in rendering judgment but from inaccurately recording the rendered judgment. Andrews, 702 S.W.2d at 585. Consequently, when a prior judicial determination is evidenced, but the signed order or judgment does not accurately reflect the court's true judicial decision, the error is clerical. Id. at 586.
In the present case, the evidence shows that the court of appeals intended to add Jeffery D. Gooch to the judgment. Texas Rule of Appellate Procedure 43.5 provides when a court of appeals affirms a trial court judgment it must render judgment against the sureties on the appellant's supersedeas bond. The court of appeals added Gooch to the judgment in accordance with this provision. Further, Jeffery Gooch does not argue that he did not sign the supersedeas bond or that he should not be liable for the judgment. The court simply recorded the judgment inaccurately; therefore, the misspelling of Gooch's name was a clerical error. We overrule Appellant's second issue.
It was proper for the trial court to correct the error. The trial court entered judgment in favor of Appellees. The court of appeals affirmed the judgment and later modified the trial court's judgment in response to Appellees' Motion to Modify the Judgment and Mandate. The trial court had jurisdiction to correct the error in its own judgment. The trial court properly denied Gooch's Motion to Dismiss for Lack of Jurisdiction and properly granted the Judgment Nunc Pro Tunc. We overrule Appellant's first and third issues.
CONCLUSION
Having overruled Gooch's three issues, we affirm the judgment.