Whitmire v. Lilly (Tex.App.- Houston [14th Dist.] Aug. 28, 2008)(Boyce)
(nunc pro tunc, NPT, void order vacated)
A judgment nunc pro tunc can only correct error in the rendition of judgment. Because
there is no evidence that the trial court erred in rendering the judgment, judgment nunc
pro tunc is not proper. Appellant's second issue is overruled. [...] we conclude that the
trial court was without jurisdiction to issue the August 17, 2007 judgment. Therefore,
the August 17, 2007 judgment is declared void. The March 23, 2006 judgment is the
operative the final judgment.
REVERSED AND RENDERED: Opinion by Justice Boyce
Before Chief Justice Hedges, Justices Brown and Boyce
14-07-00993-CV R.O. Whitmire v. Oran A. Lilly, Jr
Appeal from 155th District Court of Waller County
Trial Court Judge: Hon. Dan R. Beck
M E M O R A N D U M O P I N I O N
R. O. Whitmire appeals from a judgment nunc pro tunc entered August 17, 2007 in a property dispute. In two
issues he contends (1) the judgment nunc pro tunc is void and (2) the trial court erred in failing to correct the
clerical error in its original judgment.
In 2003, appellee filed suit against appellant and others seeking to quiet title on real property in Waller
County. On October 19, 2005, the trial court orally announced a decision that the property was to be
partitioned, with 52% percent of the property granted to appellee, and 48% of the property granted to
appellant. The court further ordered that the parties share the cost to survey the property and that appellee
remove all tires, equipment, and other tangible items from appellant's portion of the property within 45 days,
which would be December 3, 2005. At the hearing on October 19, 2005, appellant requested that the court
impose a $50 per day sanction for every day after December 3, 2005, that the tires and other debris
remained on the property. The court denied appellant's request for sanction and stated that if the tires and
debris were not promptly removed, appellant could file a motion to enforce the judgment and could recover
whatever costs were necessary to enforce the judgment at that time.
The trial court's oral announcement was not reduced to a written judgment until March 23, 2006. At that time,
the trial court ordered the property to be partitioned “by a straight line running north-to-south, with all real
property to the east of such line being hereby fully granted to and owned solely by the [appellee] and all real
property to the west of such line being hereby fully granted to and owned by [appellant]." The court further
ordered that appellee should recover from appellant $2299.83, representing an amount awarded in a
previous suit to clear title on the same property, and that appellant should recover from appellee $1358.54,
representing half of the cost of the official survey of the property. In a handwritten addition, the court ordered
sanctions for failure to remove the tires from the property at “$50.00/day beginning Dec. 4, 2006. $800.00
[attorney's fees] assessed as sanctions."
Six months later, on September 29, 2006, appellant filed a motion to correct the judgment nunc pro tunc. In
his motion, appellant alleged that the trial court's written judgment contained a clerical error in that the court
ordered sanctions to begin December 4, 2006, but the tires and debris were required to be removed by
December 3, 2005. Appellant alleged that the trial court made a clerical error in writing the year 2006 instead
On August 17, 2007, the trial court signed a second judgment in which it deleted the reference to the Waller
County deed records in its description of the property, deleted the description of how the property was to be
partitioned, deleted any reference to removing tires and debris from appellant's portion of the property
including references to sanctions, and deleted the award of $1358.54 to appellant.
Appellant appealed from the August 17, 2007 judgment claiming it is void and also asking this court to modify
the March 23, 2006 judgment to reflect that sanctions accrued on December 4, 2005.
Nunc Pro Tunc Procedure
Under Texas Rule of Civil Procedure 329b, a trial court has plenary power to correct judicial errors in a
judgment pursuant to a motion filed within 30 days after the judgment is signed. “A judicial error" is commonly
defined as an error in the rendition of judgment as opposed to the entry of judgment. Escobar v. Escobar,
711 S.W.2d 230, 231 (Tex. 1986). Judicial errors may not be corrected by a nunc pro tunc proceeding after
the trial court's plenary jurisdiction expires. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970).
After plenary jurisdiction expires, the trial court may not modify or correct a written judgment unless the
judgment as entered does not reflect the judgment the court actually rendered. Tex. R. Civ. P. 329b(f);
Escobar, 711 S.W.2d at 231. Such errors in the entered judgment are usually termed “clerical" rather than
“judicial" errors, and may be corrected under the court's nunc pro tunc powers at any time. Tex. R. Civ. P.
316. Even if the trial court rendered judgment incorrectly, it cannot alter the written judgment if the written
judgment precisely reflected the judgment that was rendered. See LaGoye v. Victoria Wood Condominium
Ass'n, 112 S.W.3d 777, 783 (Tex. App.-Houston [14th Dist.] 2003, no pet.).
Whether an error in a judgment is clerical rather than judicial is a question of law. Escobar, 711 S.W.2d at
232. However, what judgment was actually rendered is a question of fact for the trial court. America's
Favorite Chicken Co. v. Galvan, 897 S.W.2d 874, 877 (Tex. App.-San Antonio, 1995, writ denied). In
considering a motion for judgment nunc pro tunc, the trial court may not focus on what judgment should have
been rendered; rather, the critical inquiry must be on what judgment was actually rendered. Id. If the
judgment entered is the same as the judgment rendered, regardless of whether the rendition was incorrect, a
trial court has no nunc pro tunc power to correct or modify the entered judgment after its plenary jurisdiction
expires. Escobar, 711 S.W.2d at 232.
The August 17, 2007 Judgment
The trial court's plenary power over the first judgment signed March 23, 2006, expired 30 days later on April
22, 2006. See Tex. R. Civ. P. 329b(d). After plenary power expired, the trial court had no jurisdiction to
change the judgment other than to correct clerical errors. Tex. R. Civ. P. 329b(f). Any error that may have
been made in the drafting of the judgment became part of the judgment rendered at the time the judgment
was signed. See Dikeman v. Snell, 490 S.W.2d 183, 185 (Tex. 1973).
The second judgment signed by the trial court purports to delete several portions of the court's first
judgment. According to appellee's brief, the trial court realized that its description in the first judgment as to
how the property was to be partitioned was ambiguous and sought to clarify that portion of the judgment.
Further, because the tires had been removed from the property, the trial court did not include that portion of
the judgment. However, the trial court did not have jurisdiction to make substantive changes in the judgment.
The August 17, 2007 judgment made several substantive changes in the March 23, 2006 judgment, which
resulted in corrections of judicial errors, not clerical ones. See Roman Catholic Diocese of Dallas v. County of
Dallas Tax Collector, 228 S.W.3d 475, 479 (Tex. App.CDallas, 2007, no pet.) (substantive change in a
judgment results from the correction of a judicial error, not a clerical one.). The judgment signed August 17,
2007 is void because the trial court lacked jurisdiction to make substantive changes. See Tex. R. Civ. P. 329b
The March 23, 2006 Judgment
In his second issue, appellant contends that this court should correct the trial court's clerical error in the
March 23, 2006 judgment. He contends that the date on which sanctions were to begin if the tires were not
removed should have been December 4, 2005, not December 4, 2006. An appellate court may properly
render judgment that the trial court should have rendered. In re K.B., 106 S.W.3d 913, 916 (Tex. App.- Dallas
2003, no pet.); Tex. R. App. P. 43.2(c). However, the record does not reflect that the trial court rendered
judgment that sanctions would accrue beginning December 4, 2005. The record of the October 19, 2005
hearing reflects that the trial court did not intend to include a sanctions provision at all. The trial court
specifically stated that appellant could pursue his remedy through an enforcement action, and denied
appellant's request for sanctions.
On March 20, 2006, appellant filed a motion for entry of judgment and sanctions in which he requested $800
in attorney's fees and $50 per day for everyday the tires were not removed beginning December 4, 2005. In
an affidavit filed in support of his motion for judgment nunc pro tunc, appellant avers that the trial court
decided to impose sanctions at a hearing on his motion. No record of that hearing has been filed with this
court. In his opposition to the motion for judgment nunc pro tunc, appellee challenged appellant's affidavit
and alleged that he had detrimentally relied on the court's March 23, 2006 judgment. The only hearing record
before this court is the hearing that occurred on October 19, 2005.
On this record, there is no evidence that the trial court rendered judgment that sanctions accrued on
December 4, 2005. A judgment nunc pro tunc can only correct error in the rendition of judgment. Because
there is no evidence that the trial court erred in rendering the judgment, judgment nunc pro tunc is not
proper. Appellant's second issue is overruled.
Based on the foregoing, we conclude that the trial court was without jurisdiction to issue the August 17, 2007
judgment. Therefore, the August 17, 2007 judgment is declared void. The March 23, 2006 judgment is the
operative the final judgment.
/s/ William J. Boyce
Judgment rendered and Memorandum Opinion filed August 28, 2008.
Panel consists of Chief Justice Hedges and Justices Brown and Boyce.