Aubrey R. Jefferson v. William Thomas Moore

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB Opinion issued February 16, 2006 In The Court of Appeals For The First District of Texas NO. 01-05-00430-CV AUBREY R. JEFFERSON, Appellant V. WILLIAM THOMAS MOORE, Appellee On Appeal from County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 776383 MEMORANDUM OPINION After a bench trial in this automobile accident case, the trial court rendered judgment in favor of appellee, William Thomas Moore. Appellant, Aubrey R. Jefferson, contends there is no evidence to support the trial court’s finding that he was negligent, or in the alternative, the evidence is legally and factually insufficient to prove that he was negligent and that Moore suffered bodily injury as a result. We conclude that the appeal is untimely and therefore dismiss for lack of jurisdiction. Background Jefferson and Moore were involved in an automobile accident in 2000. Moore subsequently sued Jefferson, alleging that he had negligently failed to yield the right of way. Moore also sued Francis Bedford, the owner of the vehicle driven by Jefferson, for negligent entrustment. Moore never attempted to serve Bedford, and no pleadings were filed on her behalf. The trial court conducted a bench trial in July 2003. Moore and Jefferson both testified at the trial; neither party made mention of Bedford. At the conclusion of the parties’ testimony, the trial court stated, “Well, based on the testimony and evidence, I’m going to award judgment in favor of the Plaintiff for $15,000. Entry of judgment will be in 30 days.” On January 21, 2004, the trial court signed a final judgment against Jefferson in the amount of $15,000 plus interest. More than one year later, on April 6, 2005, Jefferson filed a motion for judgment asking that the trial court render a take-nothing judgment against Moore, a motion for new trial, and a motion to declare the January 21, 2004 final judgment to be interlocutory. Moore responded two days later with a motion for judgment nunc pro tunc. The motion states that due to a clerical error, the January 21, 2004 final judgment incorrectly omits a paragraph nonsuiting Moore’s claims against Bedford. The trial court granted Moore’s motion for judgment nunc pro tunc on April 12, 2005. Jefferson subsequently filed a second motion for new trial, a second motion for judgment, and a request for findings of fact and conclusions of law. The trial court did not rule on Jefferson’s motions nor issue findings of fact and conclusions of law. Jefferson filed a notice of appeal on April 22, 2005. Analysis As a threshold matter, we must determine whether Jefferson’s appeal is timely. Moore asserts that the January 21, 2004 judgment is the final judgment in the case and therefore Jefferson’s notice of appeal, filed more than one year later, is untimely. Jefferson responds that the January 21, 2004 judgment is interlocutory in nature because it does not expressly dispose of Moore’s claims against Bedford. The time for filing a notice of appeal is jurisdictional in nature, and absent a timely filed notice of appeal or extension request, we must dismiss an appeal for lack of jurisdiction. See Tex. R. App. P. 2, 25.1(b), 26.3; see also Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (discussing timing requirements for filing notice of appeal). Generally, a party must file a notice of appeal within thirty days after the trial court signs the judgment.[1] Tex. R. App. P. 26.1. Jefferson contends the appellate timetable did not start running when the trial court signed the January 21, 2004 judgment because it does not dispose of Moore’s claims against Bedford and therefore is interlocutory rather than final. The Texas Supreme Court recently considered this issue and stated as follows: This Court has long recognized a presumption of finality for judgments that follow a trial on the merits: “When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to [our procedural rules,] it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.” Moritz v. Preiss, 121 S.W.3d 715, 718–19 (Tex. 2003) (quoting N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897 (Tex. 1966)). In Moritz, the plaintiff had sued several healthcare providers, including Central Texas Kidney Associates, P.A. (“CTKA”), for medical malpractice. Id. at 717. After a full trial on the merits, the jury returned a take-nothing verdict. Id. The trial court subsequently rendered a judgment on the verdict, in which it named each defendant except for CTKA. Id. At the request of CTKA’s attorney, the plaintiff prepared and executed a notice of nonsuit for CTKA. Id. After discovering that the nonsuit had not been filed with the trial court, the plaintiff filed a “Motion to Vacate Interlocutory Order and Enter Final Judgment” in which he asserted that the trial court’s original judgment was interlocutory because it did not expressly dispose of CTKA. Id. The trial court denied the motion and the plaintiff appealed. Id. The Texas Supreme Court held that the trial court’s original judgment was final, even though it did not expressly dispose of the plaintiff’s claims against CTKA, because there was “nothing to indicate that the trial court did not intend to finally dispose of the entire case.” Id. at 719. The court noted that the plaintiff did not request, and the trial court did not enter, any orders for a separate trial against CTKA. Id. Nor did the plaintiff request that the trial court submit a jury question on CTKA’s liability. Id. The trial court did not submit such a question, and the plaintiff did not object to the charge submitted. Id. The Texas Supreme Court therefore determined that the finality presumption was “entirely appropriate.” Id. (internal quotation marks omitted); see also John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001) (holding that, although judgment did not expressly dispose of all parties, finality presumption nonetheless applied to all parties, including defendants not named in judgment, because plaintiff did not move for separate trials and instead proceeded to trial against certain defendants only). We likewise hold that the finality presumption is appropriate in this case. As in Moritz, there is nothing in the record to indicate that the trial court did not intend to finally dispose of the entire case when it entered the January 21, 2004 judgment. The judgment followed a full trial on the merits at which there was no mention of Moore’s claims against Bedford. Moore did not request, and the trial court did not enter, any orders for a separate trial against Bedford. Nor did Moore ask the trial court to render judgment on his claims against Bedford. In fact, Moore had never served Bedford, nothing in the record indicates that he ever intended to serve her, and Bedford never filed any pleadings or motions. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (holding judgment that disposed of all named parties except one who had never been served was final for purposes of appeal based on record revealing (1) unserved party never filed any motions or pleadings and (2) plaintiff had no intention to serve unserved party); Galley v. Apollo Associated Servs., 177 S.W.3d 523, 526 n.1 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (same). We therefore conclude that the trial court’s January 21, 2004 judgment is the final judgment in the case. As Jefferson did not file his notice of appeal until April 22, 2005—a full fifteen months after the trial court signed the judgment—we lack jurisdiction to review that judgment. Jefferson also appears to contend that this appeal arises not from the January 21, 2004 judgment, but rather from the April 12, 2005 judgment nunc pro tunc. Jefferson thereby insinuates that his appeal, filed on April 22, 2005, is timely. A judgment nunc pro tunc, which may be entered even after the expiration of a trial court’s plenary power, may only be used to correct clerical errors in a judgment. Tex. R. Civ. P. 316, 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). A clerical error is a discrepancy between the entry of a judgment in the record and the judgment the trial court actually rendered. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986). A trial court may only correct nunc pro tunc the entry of a final written judgment that incorrectly states the judgment actually rendered. Escobar, 711 S.W.2d at 231–32. Here, although the judgment nunc pro tunc purports to correct a “clerical error,” the January 21, 2004 final written judgment does not incorrectly state the judgment actually rendered. Thus, the judgment nunc pro tunc is void because it was entered outside the trial court’s plenary power. See Tex. R. Civ. P. 329b(d) (trial court has plenary power to vacate, modify, correct, or reform judgment within thirty days after judgment is signed); Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973) (if trial court corrects judicial error after its plenary power has expired, then corrected judgment is void). Conclusion We conclude that Jefferson failed to timely file his notice of appeal. We therefore dismiss the appeal for lack of jurisdiction. Jane Bland Justice Panel consists of Justices Taft, Higley, and Bland. [1] If a party timely moves for a new trial, to modify or reinstate the judgment, or requests findings of fact and conclusions of law following a bench trial, the time to file an appeal extends to ninety days after the trial court signs the judgment. See Tex. R. App. P. 26.1(a)(1)–(4).