In Re: Chris Ward--Appeal from of County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00098-CV
______________________________
IN RE: CHRIS WARD

Original Mandamus Proceeding

 

 

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

 

MEMORANDUM OPINION

 

Chris Ward has filed a petition for writ of mandamus asking this Court to order the trial court to perform its ministerial duty and enter a judgment nunc pro tunc correcting a clerical error in the judgment. He asks us to order the trial court to enter a judgment consistent with the relief Ward sought in his motion for nonsuit instead of dismissing the entirety of the lawsuit against all defendants. This is the second time this proceeding has been before this Court.

On August 11, 2006, we issued an opinion dismissing, for lack of jurisdiction, Ward's attempted appeal from the trial court's order denying his motion to modify the order that dismissed his lawsuit. The order dismissing the entirety of his lawsuit, with prejudice, against Robert G. Parham, M.D., George R. Hunter, M.D., and Urology Associates, was signed by the trial court December 6, 2005, pursuant to Ward's motion asking for such a dismissal. On March 22, 2006, Ward filed a motion for a nunc pro tunc order to correct a clerical mistake in the dismissal: that he did not intend to dismiss all parties, but only one of the defendants. On April 3, Ward filed a motion referencing Rule 306a, subd. 4, of the Texas Rules of Civil Procedure, in which he asked the court to modify the order dated December 6, 2005. See Tex. R. Civ. P. 306a, subd. 4. The trial court denied both motions in separate orders, both dated June 20, 2006. It was Ward's attempted appeal from the order denying his motion to modify that we dismissed for lack of jurisdiction. Ward v. Parham, 198 S.W.3d 861 (Tex. App.--Texarkana 2006, no pet.). He now asks us to issue a writ of mandamus, compelling the trial court to enter a judgment nunc pro tunc correcting a clerical error in the order dismissing his lawsuit.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994).

Ward first is confronted by the fact that a remedy at law was available to him. The judgment was final, and thus appealable. Ward had a time period during which he could have filed an appeal, or asked the trial court to reconsider its ruling. Ward has provided a record, including a copy of his motion to modify. He has also provided the trial court's order denying that motion, and finding that:

the Movant has not sustained his burden of proof and that timely notice of the subject Order of Dismissal providing for dismissal of this suit in its entirety, as requested in the Plaintiff's Motion for Non-Suit, was received by Plaintiff's counsel on or about December 6, 2005, when the District Clerk mailed notice of dismissal to the last-known and last-provided address of said counsel.

 

Ward did not provide a record of the hearing on his motion; thus, there is nothing to show that the court's finding was without support. The fact that a timely appeal from the underlying dismissal was not sought does not mean the remedy was unavailable. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); In re Flores, 111 S.W.3d 817 (Tex. App.--Houston [1st Dist.] 2003, orig. proceeding). Thus, mandamus is not available.

Even if mandamus is an available remedy, the problem here was caused by the motion for nonsuit, and the order granting that motion, both of which were prepared for the trial court by Ward's counsel. Those documents, as provided to us by Ward, appear in their entirety as follows:

CAUSE NO. 05C1104-202

 

CHRIS WARD IN THE DISTRICT COURT

v. OF BOWIE COUNTY, TEXAS

ROBERT G. PARHAM, M.D., GEORGE

R. HUNTER, M.D., AND UROLOGY

ASSOCIATES 202ND JUDICIAL DISTRICT

 

PLAINTIFF'S MOTION FOR NON-SUIT

 

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, CHRIS WARD, hereinafter referred to as Plaintiff who would show the Court as follows:

I.

Plaintiff asks this court to sign an order dismissing all his claims against the defendant, Dr. George R. Hunter, M.D., with prejudice, as Plaintiff no longer desires to prosecute this case.

II.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that this Court dismiss this case, in its entirety, with prejudice. Respectfully submitted,

 

MICHAEL HOOPER & ASSOCIATES, P.C.

 

By: ________________________________

MICHAEL R. HOOPER

State Bar No. 24037849

DARRELL CLEMENTS

State Bar No. 04362300

1700 Alma Drive

Plano, Texas 75075

Telephone No.: 972-516-1400

Facsimile No.: 972-516-1401

ATTORNEYS FOR PLAINTIFF

 

CAUSE NO. 05C1104-202

 

CHRIS WARD IN THE DISTRICT COURT

v. OF BOWIE COUNTY, TEXAS

ROBERT G. PARHAM, M.D., GEORGE

R. HUNTER, M.D., AND UROLOGY

ASSOCIATES 202ND JUDICIAL DISTRICT

 

ORDER ON PLAINTIFF'S MOTION FOR NON-SUIT

 

After considering Plaintiff's Motion for Non-Suit the Court GRANTS the motion and dismisses the above-styled cause of action with prejudice.

SIGNED on December 6, 2005.

 

____________________________________

PRESIDING JUDGE

 

As is apparent, "the above-styled cause of action" referenced in the order of dismissal included all defendants.

We recognize that a true order nunc pro tunc, correcting a clerical error, may be entered by the trial court at any time, even if it has lost jurisdiction over the case. See America's Favorite Chicken Co. v. Galvan, 897 S.W.2d 874 (Tex. App.--San Antonio 1995, writ denied). Further, as Ward correctly notes, there is authority that a trial court has committed a clerical error by dismissing a defendant that the plaintiff did not move to dismiss. In re Bridges, 28 S.W.3d 191, 195 (Tex. App.--Fort Worth 2000, orig. proceeding). A clerical error does result from inaccurately recording the decision of the court, and can thus be later corrected. In re Marriage of Ward, 137 S.W.3d 910 (Tex. App.--Texarkana 2004, no pet.).

The question before this Court, however, is whether the trial court could only have rendered the judgment against Hunter, as opposed to dismissing the entirety of the cause of action. The problem in answering that question is, so far as the record shows, there was no prior oral rendition. All we have before us are the written motion to dismiss and the order of dismissal. Ward argues that the motion and order required the trial court to dismiss only his lawsuit against Hunter. That argument directly contradicts the plain language of those two documents, both of which were prepared by his own counsel.

Ward's second position is that the motion was ambiguous, and the court necessarily should not have signed the order of dismissal, because the order did not match the motion in all respects. He argues that this is at most a mistake of counsel, and thus clerical in nature, and that the trial court was therefore required to grant his motion nunc pro tunc and correct the error. However, he is confronted with Dikeman v. Snell, in which the Texas Supreme Court held a trial court's grant of a nunc pro tunc judgment void. There, the trial court had concluded the judgment it had signed (and over which it had lost plenary power) was wrong because of attorney error, and the court attempted to correct that error. Dikeman v. Snell, 490 S.W.2d 183, 185-86 (Tex. 1973). But, because there was no contention--and presumably no proof--the trial court had earlier rendered or pronounced a different judgment, the Texas Supreme Court found that the error was necessarily judicial in nature, and thus not subject to a nunc pro tunc correction.

There are distinctions drawn in situations where the court has rendered judgment, but the writing memorializing that rendition does not match the rendition. In those cases, because judgment is effective when rendered, if the writing differs, the error is clerical, and nunc pro tunc correction is available. See Petroleum Corp. v. First Nat'l Bank, 622 S.W.2d 152 (Tex. App.--Fort Worth 1981, writ ref'd n.r.e.); Galvan, 897 S.W.2d 874; see also Bridges, 28 S.W.3d 191 (must correct dismissal that does not accurately match the request to dismiss; void to extent it attempts to dismiss against a defendant not nonsuited--court has ministerial duty to do so).

In this case, Ward has not presented us evidence showing that the trial court rendered a judgment different from the signed order of dismissal. The order completely matched the prayer of the motion, and any claimed errors in its content are not subject to clerical correction. See Escobar v. Escobar, 711 S.W.2d 230, 231-32 (Tex. 1986); Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986); Ward, 137 S.W.3d at 914; Nat'l Unity Ins. Co. v. Johnson, 926 S.W.2d 818, 820 (Tex. App.--San Antonio 1996, orig. proceeding); Petroleum Corp., 622 S.W.2d 152.

The proponent of clerical error must show by clear and convincing evidence that the trial court intended the requested result at the time the original judgment was rendered. Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 683 (Tex. App.--Houston [1st Dist.] 1997, no writ). This high burden ensures that a trial court can correct its clerical mistakes while preventing the use of Rule 316 as a vehicle to circumvent the general rules regarding the trial court's plenary power if the court changes its mind about its judgment. Tex. R. Civ. P. 316; Jenkins v. Jenkins, 16 S.W.3d 473, 482 (Tex. App.--El Paso 2000, no pet.).

We cannot conclude the trial court abused its discretion by denying the motion to file a judgment nunc pro tunc.

We deny the petition.

 

Donald R. Ross

Justice

 

Date Submitted: November 8, 2006

Date Decided: November 9, 2006