Clare Constat, LTD and Stephen York Taylor v. Max Swinburn

NO. 07-04-0277-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 20, 2006
______________________________
CLARE CONSTAT, LTD. and STEPHEN YORK TAYLOR,
Appellants
v.
MAX SWINBURN,
Appellee
_________________________________
FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;
NO. B7857-0202; HON. ED SELF, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., REAVIS, J. and BOYD, S.J.1
Appellants, Clare Constat, Ltd. and Stephen York Taylor (collectively referred to as
Taylor) appeal from a judgment and an “Order Granting Judgment Nunc Pro Tunc.”
Through the former, Taylor was ordered to convey realty to Max Swinburn (Swinburn) per
a contract executed by those parties. Via the latter, the trial court also ordered Taylor to
convey to Swinburn various improvements located on the property. The improvements
1
John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n 2005).
included a field residence, four irrigation wells with pumps, gearheads, cooling jackets,
drivelines, and a half mile center pivot sprinkler system. Taylor asserts, through four
issues, that the trial court erred in executing its initial judgment directing that the realty be
conveyed and in executing the order granting judgment nunc pro tunc. We dismiss that
issue contesting the validity of the initial judgment and affirm the order granting judgment
nunc pro tunc.
Appeal from the Initial Judgment
The initial judgment was executed on July 11, 2003. No one moved for a new trial
or perfected an appeal within 30 days from that date. Thus, it became final.
Next, the contentions underlying his attack upon the July 11th judgment (i.e. whether
the trial court had the authority to order conveyance of the realty itself) were fodder for an
appeal immediately after the trial court executed the decree. However, they were not
made the subject of an appeal until after execution of the order granting judgment nunc pro
tunc on April 12, 2004. Because the issues involving the July 11th judgment were
susceptible to appeal immediately after execution of that decree but were not raised until
the trial court granted the nunc pro tunc judgment, we cannot entertain them. TEX . R. CIV.
P. 329b(h); Daniels v. Commission for Lawyer Discipline, 142 S.W.3d 565, 569 n.3 (Tex.
App.–Texarkana 2004, no pet.).
Validity of Nunc Pro Tunc Order
As to the issues concerning the validity of the “Order Granting Judgment Nunc Pro
Tunc,” we note that once a trial court’s plenary power over a judgment expires, it generally
cannot modify the decree except through a bill of review. Barton v. Gillespie, 178 S.W.3d
2
121, 126 (Tex. App.--Houston [1st] 2005, no pet.). However, an exception to the rule
applies when the modification is undertaken to rectify a clerical mistake. Colorado
Interstate Gas Corp. v. Hunt Energy Corp., 47 S.W.3d 1, 16 (Tex. App.–Amarillo 2000, pet.
denied); Ferguson v. Naylor, 860 S.W.2d 123, 126 (Tex. App.–Amarillo 1993, writ denied).
Furthermore, a change is of that ilk when made to accurately reflect the true decision
previously made by the court. Andrews v. Koch, 702 S.W.2d 584, 586 (Tex. 1986);
Ferguson v. Naylor, 860 S.W.2d at 126. In other words, it is one undertaken to assure that
the physical judgment signed by the court comports with the decision actually rendered.
Gray v. Turner, 807 S.W.2d 818, 822 (Tex. App.–Amarillo 1991, no writ).
Here, according to Taylor, the trial court’s effort to order conveyance of the center
pivot sprinkler system and other personalty as part of the sale between Taylor and
Swinburn was more than mere effort to have the physical judgment accurately reflect the
true decision previously rendered. Rather, the trial court intended to order the conveyance
of merely the realty itself via the July 11th decree, Taylor continued. Yet, the record belies
this contention. For instance, at the hearing on Swinburn’s motion to correct the decree,
the trial judge stated that “it was the intent of the Court that the center pivot sprinkler
system be a part of the specific performance that was [previously] ordered.” See Gray v.
Turner, 807 S.W.2d at 822 (stating that a judge’s recollection is competent evidence to
support the entry of a corrected judgment). So too did it specify in its findings of fact and
conclusions of law (issued in support of the July 11th decree and long before Swinburn
moved to change it) that Taylor was “obligated to execute and deliver to Swinburn a bill of
sale conveying all personal property described in the Contract as it applies to Tracts 1 and
3
2.” Furthermore, the contract at issue described the property being sold not only as the
realty comprising tracts 1 and 2 (as well as a third tract) but also “all improvements thereon,
including without limitation by enumeration, one field residence, four irrigation wells,
complete with pumps, gearheads, cooling jackets, and drive lines, [sic] one-half mile center
pivot sprinkler system complete. . . .” Finally, that the pivot system was physically located
on at least one of the two tracts the court ordered Taylor to convey is beyond dispute.
Given the latter, the words of the contract, the recollection of the trial judge, and the
statements included in the aforementioned findings of fact and conclusions of law, there
is more than ample evidence to support the conclusion that the actual judgment rendered
included the conveyance to Taylor of the realty as well as the center pivot sprinkler system
and other property in dispute. So, the “Order Granting Judgment Nunc Pro Tunc” was
simply a modification undertaken to assure that the physical judgment comported with the
judgment actually rendered.
Consequently, we dismiss that issue attacking the July 11th judgment, overrule the
others, and affirm the order granting judgment nunc pro tunc.
Brian Quinn
Chief Justice
4