Annette E. Pletcher and Gregory D. Bennett v. Michelle M. Hansen, as for the Estate of Ted M. Bennett

Opinion issued April 28, 2011 In The Court of Appeals For The First District of Texas ———————————— NOS.  01-09-00516-CV 01-10-00845-CV ——————————— Annette E. Pletcher and Gregory D. Bennett, Appellants V. Michelle M. Hansen, as executor for the estate of Ted M. Bennett, Appellee On Appeal from the County Court at Law No. 1 Fort Bend County, Texas Trial Court Case No. 07CPR020872 MEMORANDUM OPINION Annette Pletcher and Gregory D. Bennett appeal a final summary judgment rendered against them in their suit against Michelle M. Hansen. Hansen is the executor of an estate of which Pletcher and Bennett are beneficiaries. They sued Hansen for breach of fiduciary duty, fraud, and conversion. Hansen counterclaimed, asserting, among other claims, that the suit violated the no-contest provision of the will and seeking to disinherit Pletcher and Bennett. On cross-motions for summary judgment, the trial court rendered judgment that Pletcher and Bennett take nothing on their claims and that the suit violated the no-contest provision of the will. In an appeal filed in 2009, Pletcher and Bennett assert that the trial court erred because their suit did not violate the will’s no-contest provision and a fact issue exists on their claims. Hansen filed a motion to dismiss asserting Pletcher and Bennett’s notice of appeal was not timely filed and therefore this Court lacks jurisdiction. The trial court then entered a judgment nunc pro tunc for the purpose of enabling Pletcher and Bennett to appeal the trial court’s summary judgment. Hansen appealed that judgment. We conclude that this Court lacks jurisdiction over the 2009 appeal and therefore dismiss that appeal. We further conclude that the trial court erred in entering the judgment nunc pro tunc and vacate that judgment, leaving intact the trial court’s original judgment. Procedural Background When Ted M. Bennett died and his will was probated, his daughter Michelle M. Hansen became executor of the estate. Pletcher, another daughter, and Bennett, a grandson, were also beneficiaries under the will. Dissatisfied with the way Hansen handled the estate, Pletcher and Bennett sued her for breach of fiduciary duty, fraud, and conversion. Hansen answered, asserting various affirmative defenses and counterclaims. Both sides filed motions for summary judgment. An oral hearing was conducted on March 27, 2009, according to the timeline recited in Pletcher and Bennett’s motion for new trial and appellate brief. The trial court granted Hansen’s summary judgment on her claim that Pletcher and Bennett’s suit violated the will’s no-contest provision and granted Pletcher and Bennett’s summary judgment on Hansen’s claims for intentional infliction of emotional distress. The trial court denied the remainder of Pletcher and Bennett’s motion. The trial court’s judgment specifically states that, as a result of the no-contest provision of the will, Pletcher and Bennett are disinherited and orders them to repay distributions made to them by the estate. The judgment is nine pages long. It was hand-delivered to the trial judge on March 27, after the hearing on the summary judgment earlier in the day, with a cover letter from Hansen’s counsel. The letter states that attached is a revised final judgment that the trial court asked be delivered that day. On the first page under the caption, the judgment begins, “On this, the _____ day of March 2009, Defendant’s Motion for Summary Judgment, as well as Plaintiffs’ Motion for Summary Judgment, in the above-captioned case, and both Motions were heard before this Court.” The blank is filled in with the numeral “27.” According to the trial court judge, he wrote “27” in the blank on that date, which was a Friday. The end of that first paragraph states, “[T]he Court holds as follows and issues the following judgment: . . . .” The next seven pages detail the trial court’s findings and rulings. At the bottom of page eight, the judgment states, “This is a final judgment disposing of all parties’ claims, pending any appeal that may be brought.” This is followed by a line under which “JUDGE PRESIDING” is typed. The trial court judge signed on the line. The judgment does not have a separate blank or space for the judge to indicate the date of signing on the judgment; the only blank was the date for the hearing. On the ninth page, Hansen’s attorney signed, indicating the judgment was approved “as to form only,” but Pletcher and Bennett’s attorney did not. The ninth page also bears a file stamp from the county clerk indicating the judgment was “FILED FOR RECORD” on March 30, 2009, which was a Monday. The clerk sent notice to the parties on April 3, 2009, stating that “On the 30th day of March, 2009, in the County Court at Law 1, Fort Bend County, Texas, a(n) Agreed Final Judgment was rendered.” Pletcher and Bennett filed a motion for new trial on April 29, 2009, 33 days after March 27 and 30 days after March 30. The trial court overruled the motion for new trial on June 1, and Pletcher and Bennett filed their notice of appeal on June 2, 2009. This appeal was assigned cause number 01-09-00516-CV in this Court (the “2009 appeal”). Initially, both sides treated March 30 as the date of the signing of the judgment. For example, Hansen, in her response to the motion for new trial, stated the trial court ruled from the bench on March 27, 2009 and “memorialized” the court’s ruling by entering judgment on March 30. Similarly, in her designation of items to be included in the clerk’s record, Hansen identified “The Court’s Final Judgment dated March 30, 2009.” Hansen later changed her position. Over one year later, on April 8, 2010, Hansen filed a motion to dismiss in this Court, asserting for the first time that the final judgment was signed on March 27, 2009. As proof, Hansen relied on the judge’s writing of “27” in the blank on the first page of the judgment and the county clerk’s table of contents in the clerk’s record for this appeal which contains an entry for “Agreed Final Judgment (Signed March 27, 2009).” Pletcher and Bennett responded that, rather than the date the trial court indicated it heard the motions for summary judgment or the date the trial court clerk included in a table of contents, the best evidence of the date of the signature is the file stamp indicating the judgment was filed with the clerk on March 30. Since then, the parties have been maneuvering in attempts to support their respective positions. Over a year after the summary judgment hearing, the trial court signed a certification pursuant to Rule 306a(2) indicating that it had signed the judgment on March 27, 2009. The trial court judge signed the certification at Hansen’s request after a hearing with counsel for both sides. Hansen then filed in this Court an amended motion to dismiss. In the motion, Hansen asserted that the trial court’s certification of the March 27, 2009 signing date conclusively established that Pletcher and Bennett’s notice of appeal was untimely and this Court therefore lacks jurisdiction. Hansen further asserted that, because Pletcher and Bennett did not join in the motion to dismiss based on the trial court’s certification, she was entitled to sanctions for attorney’s fees because, after the certification, “it should have been apparent to any licensed attorney that this appeal must be dismissed for want of jurisdiction.” In response, Pletcher and Bennett filed in the trial court a “Motion for Judgment Nunc Pro Tunc and Verified Motion to Extend Post Judgment Deadlines.” In the motion, they asked the trial court to sign a judgment nunc pro tunc “correcting th[e] clerical omission” of the date of signing pursuant to Rule 316. The trial court granted this motion, signing a judgment nunc pro tunc on August 24, 2010 that is identical to the prior judgment, only specifying that it was signed on March 27, 2009. Pletcher and Bennett did not oppose the trial court specifying the date of signing of the judgment as March 27, 2009, because the trial court had already determined that date when it signed the certification in June 2010. In fact, because the trial court had already stated his recollection of the date of signing, Pletcher and Bennett requested the court to utilize that day in the judgment nunc pro tunc. Pletcher and Bennett then filed an appeal from the judgment nunc pro tunc. That appeal was assigned cause number 01-10-00845-CV in this Court (the “2010 appeal”). In their verified motion to extend post judgment deadlines filed with trial court, Pletcher and Bennett asserted that they did not receive notice that judgment had been signed on March 27, 2009 within 20 days of the date of signing. Pursuant to Rule 306a(4), they asked for their time periods to begin running from the date that they received notice that the judgment was signed on March 27, 2009—that is, June 22, 2010, when the trial court signed the certification. The record does not contain a ruling from the trial court on this motion. In Pletcher and Bennett’s response to Hansen’s motion to dismiss and for sanctions, they assert that the clerk’s notice states the original judgment was rendered on March 30, 2009 and a judgment cannot be signed before it is rendered. In other words, they ask this Court to give conclusive effect to the clerk’s notice rather than the trial court’s certification. In the alternative, Pletcher and Bennett contend that they should be allowed to appeal the August 24, 2010 judgment nunc pro tunc pursuant to Rule 306a(6). Hansen also appeals the judgment nunc pro tunc, contending that the trial court erred in rendering that judgment. Jurisdiction As a threshold matter, we must determine if this Court has jurisdiction over the 2009 appeal. Hansen has moved for dismissal asserting that Pletcher and Bennett’s notice of appeal was not timely filed. A. The date of signing determines the time to file a motion for new trial and notice of appeal In the absence of a timely notice of appeal, this court lacks jurisdiction over an appeal and must dismiss. Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233, 233 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005). A notice of appeal “must be filed within 30 days after the judgment is signed.” Tex. R. App. P. 26.1. The time to file a notice of appeal may be extended by, among other things, a timely filed motion for new trial. Tex. R. App. P. 26.1(a)(1). A motion for new trial must be filed “prior to or within thirty days after the judgment or other order complained of is signed.” Tex. R. Civ. P. 329b(a). Rule 329b(a) and Rule 26.1 both expressly state the beginning of the time period to file a motion for new trial or notice of appeal begins on the date the judgment is signed. Id.; Tex. R. App. P. 26.1. Rule 306a of the Texas Rules of Civil Procedure also expressly states this start date, and provides other rules for determining the beginning of a party’s time period to file a motion for new trial, including rules concerning the other issues involved in this case, such as when a judgment does not state the date of signing and when a party does not receive notice of the signing of a judgment. Rule 306a, entitled “Periods to Run From Signing of Judgment,” provides, in pertinent part: 1. Beginning of periods. The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules . . . for filing in the trial court the various documents that these rules authorize a party to file within such periods including, but not limited to, motions for new trial, . . . ; but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose. . . . . 3. Notice of judgment. When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as provided in paragraph (4). 4. No notice of judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed. 5. Motion, notice and hearing. In order to established the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed. 6. Nunc pro tunc order. When a corrected judgment has been signed after expiration of the court’s plenary power pursuant to Rule 316, the periods mentioned in paragraph (1) of this rule shall run from the date of signing the corrected judgment with respect to any complaint that would not be applicable to the original document. Tex. R. Civ. P. 306a (emphasis added). As noted above, the parties dispute when the judgment was signed. If it was signed on March 27, 2009, Pletcher and Bennett’s motion for new trial filed on April 29 was not timely and did not extend the time for filing a notice of appeal absent a showing of grounds set forth in Rule 306a(4) for extending that deadline. Under this scenario, the June 2, 2009 notice of appeal was filed more than 30 days after the judgment and was not timely. See Tex. R. App. P. 26.1. If, however, the judgment was signed on March 30, the motion for new trial and the notice of appeal were both timely. See Tex. R. App. P. 26.1(a). Thus, the first matter we must determine in this case is when the judgment was signed. B. Signing of the original judgment The evidence supports the trial judge’s certificate that he signed the judgment on March 27. The trial judge signed a certificate, and later, a judgment nunc pro tunc, stating that he signed the judgment on March 27, 2009. At the hearing before he signed the certificate, the trial judge stated in open court that he determined the date based on his own recollection. The record also contains a letter dated March 27, 2009 that accompanied the hand-delivery of the judgment to the trial court and states that the judge had ordered the judgment to be delivered to him that day. The listing of the dates of various pleadings in the clerk’s record also states that the original judgment was signed on March 27, 2009. Pletcher and Bennett argue that the trial court clerk’s notice of April 3, 2009, that stated the judgment was rendered on March 30, 2009, “is much stronger and conclusive evidence than the trial judge’s recollection of the event more than one year later.” We are in no position to disagree with the trial court’s determination, particularly when his recollection is supported by other facts in the record. Rule 306a(2) expressly provides that the date of signing of a judgment “may be shown in the record by a certificate of the judge or otherwise” when the date of the signing is not recited in the judgment. Tex. R. Civ. P. 306a(2); see also Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978) (accepting trial court’s change to date judgment signed when trial court’s judgment stated date matter was heard but not date of signing of judgment); cf. Barton v. Gillespie, 178 S.W.3d 121, 127 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding trial court may rely on its recollection in determining whether a clerical error was made and a judgment nunc pro tunc is appropriate). Pletcher and Bennett also contend that because the clerk’s notice states the judgment was rendered on March 30, 2009, it is impossible for the judgment to have been signed on March 27, 2009.[1] Not so. The judgment here could have been signed on Friday March 27 and given to the clerk and filed on Monday March 30. The clerk could then have used the term “rendered” for the date of the filing. Pletcher and Benett rely on language in various opinions that a written judgment is rendered when it is filed with the clerk. A judgment routinely goes through three stages: rendition, reduction to writing and judicial signing, and entry. A judgment is “rendered” when the trial court’s decision upon the matter submitted to it for resolution is officially announced either orally in open court or by memorandum filed with the clerk. In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 n.5 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (citing Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970)) (emphasis added).[2] This language suggests that a judgment may be signed before it is rendered, or, “announced . . . by memorandum filed with the clerk.” Id. Whether the judgment was “rendered” when it was signed or when it was filed with the clerk is legally insignificant because the signing starts the applicable appellate time tables. Coinmach, Inc. v. Aspenwood Apt. Corp., 98 S.W.3d 377, 380 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that when a trial court signed a judgment, but it was not filed with the clerk for several days, the post-judgment time periods nevertheless began to run on the date of signing, not the date the judgment was filed with the clerk). Therefore, we do not need to determine whether the signing of the original judgment by the trial court constituted a rendition of judgment. Accordingly, we conclude that the evidence supports the trial court’s certificate that the judgment was signed on March 27, 2009. See Tex. R. Civ. P. 306a(2) (date of signing “may be shown in the record by a certificate of the judge or otherwise”); Burrell, 570 S.W.2d at 384 (trial court’s correction to date in judgment supported by other facts in record). C. The appeal of the original judgment Having determined that the record supports the trial court’s determination that the original judgment was signed March 27, 2009, Pletcher and Bennett’s motion for new trial filed 33 days later on April 29, 2010 is untimely. Their notice of appeal had to have been filed by 30 days after the judgment, or April 27, 2009.[3] See Tex. R. App. P. 26.1. It was not filed until June 2, 2009. Before the trial court, Pletcher and Bennett sought an extension of time pursuant to Rule 306a(4). As noted in our statement of facts, the trial court did not rule on that motion. Thus, any error is waived. See Tex. R. App. P. 33.1(a)(2)(A) (ruling by trial court required to preserve issue for appeal). Accordingly, we dismiss the 2009 appeal for lack of jurisdiction.[4] Appeal of the judgment nunc pro tunc In the 2010 appeal, both sides have appealed the trial court’s judgment nunc pro tunc. In her sole issue, Hansen contends that the trial court erred by signing the judgment nunc pro tunc because—except for specifying the date—it was identical to the original judgment and signed for the sole purpose of extending Pletcher and Bennett’s time to perfect their appeal. In their first issue in the 2010 appeal, Pletcher and Bennett assert that the trial court erred by signing the judgment nunc pro tunc stating that the judgment was signed on March 27, 2009. In other words, Hansen contends the trial court erred by signing the judgment nunc pro tunc at all, whereas Pletcher and Bennett complain that the trial court erred by making the correction it did. After a trial court loses plenary power, it may not change its judgment. A judgment nunc pro tunc may, however, be issued after a trial court’s plenary power expires to “correct a clerical error” in a judgment or order. Tex. R. Civ. P. 329b(f); Tex. R. Civ. P. 316; Gutierrez v. Gutierrez, 86 S.W.3d 721, 726 (Tex. App.—El Paso 2002, no pet.); Jenkins v. Jenkins, 16 S.W.3d 473, 482 (Tex. App.—El Paso 2000, no pet.) To be clerical in nature, the error must be one that is not the result of judicial reasoning, evidence, or determination. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986); Barton, 178 S.W.3d at 126. Conversely, a judicial error arises from a mistake of law or fact that requires judicial reasoning to correct. Barton, 178 S.W.3d at 126. A clerical error occurs in entering final judgment, while a judicial error is made in rendering a final judgment. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986); Barton, 178 S.W.3d at 126. Whether an error is judicial or clerical is a question of law. Escobar, 711 S.W.2d at 232. In determining whether a correction is of a judicial or a clerical error, courts examine the judgment actually rendered, not the judgment that should or might have been rendered. Id. at 231. A judgment rendered to correct a judicial error after plenary power has expired is void. Hernandez v. Lopez, 288 S.W.3d 180, 185 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 682 (Tex. App.—Houston [1st Dist.] 1997, no writ). The correction of the date of signing is the type of mistake, a clerical error, that may be corrected by a judgment nunc pro tunc. See In re Taylor, 113 S.W.3d 385, 393 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding); In re Broussard, 112 S.W.3d 827, 833 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). One court has held that the omission of the date of signing may be corrected by a judgment nunc pro tunc. See Owens-Corning Fiberglas Corp. v. Wasiak, 883 S.W.2d 402, 404–05 (Tex. App.—Austin 1994, no writ) (stating omission of date of signing is clerical error that may be corrected by judgment nunc pro tunc). Nevertheless, the trial court erred in granting the request for a judgment nunc pro tunc because a trial court cannot sign a judgment nunc pro tunc for the sole purpose of extending appellate deadlines. Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex. 1973). In Anderson, the trial court signed a final judgment on August 18, 1971. Id. More than 30 days later, the trial court signed an identical order with the date of September 20, 1971. Id. There was also a recital stating that plaintiff’s counsel did not have knowledge of the August 18 judgment in time to perfect an appeal. Id. The Supreme Court held that the September 20 judgment “could serve no purpose other than to enlarge the time for appeal” and, thus, was improper. Id. at 510–11. While this case is distinguishable because the trial court’s judgment did not reflect the date of signing, the correction was unnecessary because the date was already established by the trial court’s July 2010 certificate setting forth the date that the judge signed the original judgment. Thus the “sole” purpose of the judgment nunc pro tunc was to extend time for filing an appeal. We conclude that Anderson bars the trial court from signing the judgment nunc pro tunc. We sustain Hansen’s sole issue, and vacate the trial court’s judgment nunc pro tunc, leaving intact the trial court’s original judgment. E. Conclusion In summary: • The trial court’s determination that the original judgment was signed March 27, 2007 is supported by the record. • Pletcher and Bennett’s notice of appeal of the trial court’s original judgment in appellate cause number 01-09-00516-CV was not timely filed. • The trial court erred by signing a judgment nunc pro tunc. Accordingly, we conclude that we lack jurisdiction over the 2009 appeal, and we vacate the judgment nunc pro tunc signed on August 24, 2010. Conclusion We grant Hansen’s motion to dismiss and dismiss cause number 01-09-00516-CV for want of jurisdiction. We vacate the judgment and dismiss the appeal in cause number 01-10-00845-CV. We deny Hansen’s motion for sanctions and dismiss all other pending motions as moot. Harvey Brown Justice Panel consists of Justices Jennings, Higley, and Brown. [1] Specifically, Pletcher and Bennett rely on Wittau v. Storie, in which the court held that when a “trial court signs a judgment on an issue without first making an oral pronouncement in open court, the act of signing the judgment is the official act of rendering judgment.” 145 S.W.3d 732, 735 (Tex. App.—Fort Worth 2004, no pet.). Courts have repeatedly found that the trial court’s act of signing the judgment constituted the official act of rendering the judgment. See, e.g., Bd. of Trs. of Bastrop Indep. Sch. Dist. v. Toungate, 958 S.W.2d 365, 367 (Tex. 1997); Reese v. Piperi, 534 S.W.2d 329 (Tex. 1976). But in these cases the issue was whether the rendition occurred before the judge signed the judgment, not whether it occurred after the judge signed the judgment. In all of these cases, including Wittau, the issue involved whether the judge had rendered a judgment or order by an oral pronouncement that was before the date the formal order was signed. In this case, the signature occurred before the date that Pletcher and Bennett claim constituted “rendition.” [2] The Texas Supreme Court has offered two definitions of when a judgment is rendered. Compare Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 59 (Tex. 1970) (“A judgment is in fact rendered whenever the trial judge officially announces his decision in open court . . . in his official capacity for his official guidance whether orally or by written memorandum the sentence of law pronounced by him in any cause.”) and Samples Exterminators v. Samples, 640 S.W.2d 873, 875 (Tex. 1982) (quoting Comet) with S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857–58 (Tex. 1995) (judgment is rendered when the court makes an official announcement, “either orally in open court or by memorandum filed with the clerk”) and Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex. 1969) (same). [3] Actually, 30 days after the judgment was April 26, 2009. April 26, 2009, however, was a Sunday. Therefore, their notice of appeal was due Monday, April 27, 2009. See Tex. R. App. P. 4.1(a). We also note that a notice of appeal filed within 15 days of the deadline can be timely if accompanied by a motion for extension of time and a reasonable explanation for the untimely filing. See Tex. R. App. P. 26.3 and 10.5(b) (concerning motion for extension of time to file notice of appeal); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (implying motion for extension of time if notice of appeal filed within 15 days of deadline). Fifteen days from April 27, 2009 was May 12, 2009, well before the notice of appeal in this case was filed. [4] Pletcher and Bennett further argue that dismissal of the appeal denies them due process. They have not, however, cited any authority in support of this proposition. It is, therefore, waived. See Tex. R. App. P. 38.1(i). We do, however, deny the motion for sanctions.