DocketNumber： 01-02-00755-CV
Filed Date： 8/15/2002
Status： Precedential
Modified Date： 9/2/2015
Opinion issued August 15, 2002
In The
Court of Appeals
For The
First District of Texas
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NO. 01-02-00755-CV
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IN RE WILLIAM H. SIMMONS, MARY SIMMONS HENSLEY,
INDIVIDUALLY AND AS TRUSTEE, AND THE W.H. SIMMONS TRUST, Relators
Original Proceeding on Petition for Writ of Mandamus
O P I N I O N
Relators have filed a petition for writ of mandamus complaining of the trial court's (1) denial of their motion for judgment nunc pro tunc in cause no. 96-56962 following their unsuccessful appeal from the original judgment. Relators were party to a 1991 lawsuit involving some real estate interests. A settlement was reached in 1996 that required relators to convey some property to the real parties in interest, Compania Financiera Libano, S.A. and Armando Fong Najarro, and required the parties to execute a mutual release. An agreed judgment was entered disposing of the suit. Relators apparently refused to convey the property, and the real parties in interest filed the underlying suit to enforce the settlement.
In 1998, the trial court granted summary judgment to the real parties in interest, finding the settlement enforceable, and ordered relators to convey the property. Relators appealed on the ground that the agreed judgment entered in the 1991 suit following the 1996 settlement did not refer to the conveyances or the release and thus barred enforcement of those settlement terms by res judicata. The Fourteenth Court of Appeals agreed and reversed the judgment, but the Supreme Court reversed the court of appeals and affirmed the trial court judgment in June, 2001. See Simmons v. Compania Financiera Libano, S.A., 14 S.W.3d 338 (Tex. App.--Houston [14th Dist.] 2000), rev'd, Compania Financiera Libano, S.A. v. Simmons, 53 S.W.3d 365 (Tex. 2001) (per curiam).
When relators still failed to convey the property after the appeal was over, the real parties in interest filed a motion for contempt in the trial court in April, 2002. Relators responded by filing a motion for judgment nunc pro tunc, asking the trial court to "correct" its 1998 judgment to add an order of specific performance by the real parties to execute the mutual release. At the contempt/nunc pro tunc hearing, the court refused to sign a judgment nunc pro tunc changing its 1998 judgment, and relators tendered executed conveyances and the release to the trial court for safe keeping pending the outcome of this mandamus proceeding. Apparently, the real parties in interest are refusing to execute the mutual release in exchange for the conveyances for some undisclosed reason.
It appears to the Court that relators should have addressed their complaint about the judgment in their appeal. Moreover, to succeed on their petition for writ of mandamus, relators must demonstrate that they have no adequate remedy at law. In re Fuselier, 56 S.W.3d 265, 268 (Tex. App.--Houston [1st Dist.] 2001, orig. proceeding). Here, relators have an adequate remedy at law: an action for breach of the settlement agreement. Thus, mandamus will not issue.
Furthermore, although a nunc pro tunc judgment may be used to correct clerical errors in a judgment, it may not be used to correct judicial omissions. Before a judgment nunc pro tunc may be entered, there must be proof that the proposed judgment was actually rendered or pronounced at an earlier time but that a clerical mistake made the judgment as written incorrect. Stafford v. State, 63 S.W.3d 502 (Tex. App.--Texarkana 2001, pet. ref'd). Here, we have an alleged omission of a term from the 1998 judgment. The only proof offered by relators is the trial court's later finding of fact that the whole settlement was enforceable. Relators have presented no proof that a different judgment was actually rendered, but incorrectly recorded, before the judgment relators want to change.
Moreover, where a party's attorney tenders a proposed judgment to the judge and no evidence of a hearing is offered, the judge's signing of the judgment is the rendering of the judgment, and all errors in the judgment are judicial errors. In re Fuselier, 56 S.W.3d at 268. This Court has previously stated that: "[w]hen deciding whether an error in a judgment is judicial or clerical, the court must look to the judgment actually rendered, not the judgment that should or might have been rendered." Id. at 267. Even if the court renders incorrectly, it cannot alter a written judgment that precisely reflects the incorrect rendition. Id. A drafting error by a party's attorney does not constitute clerical error. Id. at 268. Recitations and provisions included in a judgment by the mistake of the attorney become a part of the court's judgment as rendered and are thus judicial errors. Id. The trial court was correct in denying the motion for judgment nunc pro tunc because relators are trying to correct a judicial, rather than clerical, error in the original judgment, if there was an error at all.
We deny the petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Hedges, Jennings, and Keyes.
Do not publish. Tex. R. App. P. 47.
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