Gilbert Servantez v. Gloria Salazar--Appeal from County Court at Law No 8 of Bexar County

99-00252 Servantez v Salazar.wpd No. 04-99-00252-CV
Gilbert SERVANTEZ,
Appellant
v.
Gloria SALAZAR,
Appellee
From the County Court at Law Number 8, Bexar County, Texas
Trial Court No. 237712
Honorable Karen Crouch, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: September 6, 2000

AFFIRMED

Gilbert Servantez appeals orders by the trial court seeking to enforce a judgment after

its plenary power had expired. Because the trial court was entitled to enforce its original judgment, we affirm, the orders of the trial court.

Facts And Procedural Background

On April 3, 1997, Gloria Salazar filed suit against her brother, Gilbert Servantez, for breeching an agreement to execute and deliver to her a deed for certain described property. The property was described in the petition and in the trial court's findings of facts as:

Lot Thirty-Four (34), Block Fifteen (15), New City Block Fourteen Thousand Four Hundred Thirty-Five (14,435), Southridge Park, Unit 3, in the City of San Antonio, Bexar County, Texas, according to plat thereof recorder in Volume 6400, Page 29, Deed and Plat Record of Bexar County, Texas.

Servantez promised Salazar that he would tender to her the deed to the described property for $2500 if she would assume the mortgage note on the described property. Salazar, relying on his promise, tendered the $2500 and assumed the mortgage payments on the property. Servantez refused to deliver the deed and the deed records of Bexar County still reflect that he is the owner.

On August 14, 1998, the trial court signed a judgment in favor of Salazar. The court ordered Servantez to execute and deliver "the attached deed" to Salazar on or before May 20, 1998. No deed was attached. Servantez filed a motion for new trial, which was overruled by operation of law on October 28, 1999.

After the trial court's plenary power had expired, the court heard several post-judgment motions. On March 8, 1999, Salazar filed a motion to require execution of documentation. At the hearing, Salazar presented the court with an assumption warranty deed which she asked the court to order Servantez to sign. The request was granted on March 26, 1999, and reduced to a written order signed March 29, 1999. In that order, Servantez was ordered to sign and deliver "the deed, a copy of which is attached hereto." However, no deed was attached to the order. An assumption warranty deed does appear in the record attached to an order to reset plaintiff's motion for supersedeas bond.

Notice of appeal was filed on April 15, 1999.Discussion

The primary issue in this case is whether the trial court may enforce the underlying August 14, 1998 judgment after its plenary power expired. Servantez asserts that the post-judgment orders issued on March 26, 1999 and on March 29, 1999, were amendments to the original judgment and as such were void because the trial court had lost its plenary jurisdiction to change the August 14, 1998 judgment. Salazar argues that the post-judgment orders were merely orders to enforce the August 14, 1998 judgment, which the trial court had continuing jurisdiction to enter.

Different rules govern the jurisdiction of the trial court to accomplish different acts. As long as a trial court has plenary power it may grant a new trial or vacate, modify, correct or reform its judgment. TEX. R. CIV. P. 329b(d); Matz v. Bennion, 961 S.W.2d 445, 452 (Tex. App.-Houston [1st. Dist.] 1997, pet. denied). A court also has the inherent and explicit authority under Texas Rule of Civil Procedure 308 to enforce its orders beyond its plenary power. Id. at 452; See Also Katz v. Bianchi, 848 S.W.2d 372, 374 (Tex. App.-Houston [14 Dist.] 1993, no writ.). The only limit on a trial court's authority to enforce its judgment is that enforcement orders cannot be inconsistent with the original judgment and cannot materially change a part of the judgment that has been substantially adjudicated. Matz , 961 S.W.2d at 452.

We agree with Salazar that the post-judgment orders of March 26, 1999 and March 29, 1999 are orders enforcing the trial court's judgment. We also believe that the orders were consistent with the original judgment and did not constitute a material change to substantial adjudicated portions of the judgment.

The original judgment ordered Servantez to execute and deliver an "attached deed" to plaintiffs. The written order of March 29, 1999 and the oral order of March 26, 1999 ordered Servantez to sign and deliver a deed to Salazar. On its face, the original judgment and the written orders are consistent.

Furthermore, it is clear from the record before us, that the subject of the underlying suit was the ownership of certain real estate described sufficiently in the original petition and the findings of fact and conclusions of law. According to the findings of fact and conclusions of law, the deed was to be a special warranty deed reflecting the legal and rightful ownership of the property by Salazar. Servantez does not allege, nor is there any evidence in the record, that the deed he was ordered to execute post-judgment is a material change from the substantial adjudicated portions of the judgment. He merely argues that the failure to recite material provisions of the deed in the judgment deprived him of his right to appeal any such deed, (1) and therefore, was a judicial mistake. (2) We therefore find that the post-judgment orders do not represent a material change to the original judgment. See Bennion, 961 S.W.2d at 452.

Servantez also argues that the orders of the court on March 26, 1999 and March 29, 1999 were in violation of the Texas Constitution and the Texas Family Code because Servantez's wife was not joined as a party to the original suit. His argument is a collateral attack on a final judgment. Because he did not timely file his notice of appeal, we have no jurisdiction to address this issue. TEX. R. APP. P. 26.1; Mapco v. Forrest, 795 S.W.2d 700, 702-03 (Tex. 1990).

For the aforementioned reasons, the judgment of the trial court is affirmed.

Tom Rickhoff, Justice

Do Not Publish

1. Servantez had the opportunity to appeal the trial court's failure to attach the deed to the judgment and failed to do so.

2. Noticeably, the failure to attach exhibits has been held to be a clerical error and not a judicial error. Operation Rescue v. Planned Parenthood, Inc., 937 S.W.2d 60, 86 (Tex. App.-Houston [14 Dist.] 1996, modified on other grounds, 975 S.W.2d 546 (Tex. 1998).