Pat Hambrick Construction, Inc. v. Mid-Continent Casualty Company

/ IN THE TENTH COURT OF APPEALS No. 10-04-00073-CV Pat Hambrick Construction, Inc., Appellant v. Mid-Continent Casualty Company, Appellee From the 74th District Court McLennan County, Texas Trial Court No. 03-774-3 MEMORANDUM Opinion Appellant and Appellee have filed a joint motion to dismiss this appeal. The parties have reached an agreement to settle the case and no longer wish to pursue the appeal. We have not issued an opinion in this matter. Accordingly, this appeal is dismissed. Tex. R. App. P. 42.1. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Appeal dismissed Opinion delivered and filed August 31, 2005 [CV06] Deloz Brown complains that the trial court erred in finding that judgment had been rendered on June 6, 1991, divorcing her and Frank Brown, Jr. and dividing their estates. Her second issue complains that the court erred in finding that an agreement for property division was made. Because we find that each issue presented actually complains of the same error, we will respond simultaneously. On April 3, 1991, Frank Brown, Jr. filed for divorce. A hearing was held on June 6 with Frank Brown, his attorney, and Sam Appell (Deloz Brown’s attorney) present. Deloz chose not to attend. At this hearing a docket notation was made. It states: “6/6/91 Divorce per order to be filed herein. Bill Logue Judge.” No record of the proceedings was made, nor was a decree ever signed. Upon discovering that no decree had been signed, Deloz filed a counter-petition for divorce some five years later. Her attorney of record, Sam Appell, executed an affidavit in which he swore that the parties had been divorced and that they agreed that “each of the parties kept what they had” with regard to property, since the parties had been separated for several years. On June 23, 1997, the court held a hearing and heard testimony from both parties. Frank testified that the court announced its decision orally in open court on June 6, 1991, after he specifically asked if he was divorced. The court replied “yes, sir, Mr. Brown, you are divorced.” As a result of the June 23 hearing, Judge Logue signed and entered a “Decree of Divorce.” He indicated that, although he had no personal recollection of the June 6 hearing, he knew that his “intent was to grant the divorce at that time” on June 6. Judgment is “rendered” when the Court’s decision upon the matter submitted to it for adjudication is officially announced either orally in open court or by memorandum filed with the clerk. Samples Exterminators v. Samples, 640 S.W.2d 873, 875 (Tex. 1982); Delaup v. Delaup, 917 S.W.2d 411, 413 (Tex. App. — Houston [14th Dist.] 1996, no writ). The subsequent reduction of the pronouncement to writing signed by the Court is simply a ministerial act pursuant to Rule 306a of the Rules of Civil Procedure by which enduring evidence of the judicial act is recorded. W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783, 785 (Tex. App. — Houston [1st Dist.] 1990, no writ). The judge may consider his own docket entry and personal recollection in deciding whether his oral pronouncement was rendition of judgment. Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 291 (Tex. App. — Waco 1988, no writ); Bockemehl v. Bockemehl, 604 S.W.2d 466, 469 (Tex. Civ. App. — Dallas 1980, no writ). In deciding whether it had rendered judgment in 1991, the court considered its own docket entry, live testimony from both parties, the affidavit of Deloz Brown’s attorney of record in 1991, and a copy of the unsigned decree. We find that the court did not err in finding that judgment was rendered on June 6, 1991, and in memorializing that judgment in writing after the May, 1997 hearing. Issue one is overruled, and issue two is rendered immaterial. Frank Brown has requested delay damages, suggesting “this appeal is exactly the kind of frivolous appeal for which the just damages provisions of Rule 45 are appropriate.” We do not believe that sanctions are justified. His request is overruled. The judgment is affirmed. BILL VANCE Justice Before Chief Justice Davis, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed January 14, 1998 Do Not Publish