In re Montgomery First Corp. and Elton Montgomery--Appeal from 32nd District Court of Nolan County

11th Court of Appeals

Eastland, Texas

Opinion

In re Montgomery First Corp. and Elton Montgomery

No. 11-01-00296-CV B Original Proceeding

In re Montgomery First Corp. and Elton Montgomery

No. 11-01-00356-CV B Original Proceeding

Montgomery First Corp. and Elton Montgomery

Appellants

Vs. No. 11-01-00395-CV B Appeal from Nolan County

Caprock Investment Corp.

Appellee

In Cause No. 11-01-00296-CV, Montgomery First Corp. (MFC) and Elton Montgomery (Montgomery) are challenging the trial court=s September 12, 2001, judgment nunc pro tunc. In Cause No. 11-01-00356-CV and Cause No. 11-01-00395-CV, MFC and Montgomery are challenging the trial court=s October 22, 2001, second judgment nunc pro tunc. MFC and Montgomery have also appealed from the trial court=s March 16, 2001, final judgment in Cause No. 11-01-00194-CV. In a separate opinion in Cause No. 11-01-00194-CV, we have reversed the trial court=s March 16, 2001, final judgment and remanded the underlying cause of action to the trial court.

As a result of the reversal of the trial court=s final judgment, the final judgment has become nonexistent. King v. Cash, 174 S.W.2d 503, 504 (Tex.Civ.App. - Eastland 1943, no writ). Since the final judgment no longer exists, there cannot be a judgment nunc pro tunc because Aa judgment nunc pro tunc necessarily presupposes an existing judgment.@ King v. Cash, supra at 504; see Ex parte Field, 921 S.W.2d 430, 432 (Tex.App. - Amarillo1996)(original proceeding). A nonexistent judgment cannot be amended or corrected by a nunc pro tunc judgment. Ex parte Field, supra at 432; King v. Cash, supra at 504. Therefore, the trial court=s September 12, 2001, judgment nunc pro tunc and the trial court=s October 22, 2001, second judgment nunc pro tunc are void. Because the nunc pro tunc judgments are void, the issues raised by Montgomery First Corp. and Elton Montgomery in Cause Nos. 11-01-00296-CV, 11-01-00356-CV, and No. 11-01-00395-CV have become moot; and we, therefore, dismiss these actions.

TERRY McCALL

JUSTICE

September 26, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.