CITY OF DALLAS, Appellant v. SUZANNE COX, ET AL., Appellees

Dissenting Opinion filed October 5, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00432-CV
............................
CITY OF DALLAS, Appellant
V.
SUZANNE COX, ET AL., Appellees
.................................................................
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 88-13683-G
.................................................................
O P I N I O N
Before Chief Justice Enoch and Justices Baker and Whittington
Dissenting Opinion by Justice Whittington
 
        I respectfully dissent. I would hold that the amended findings of fact, entered when the trial court still retained plenary jurisdiction over the cause, operated to modify the trial court's judgment and restart the appellate timetable. Accordingly, I would assert jurisdiction over this appeal.
        The trial court entered judgment on December 21, 1988. Eight days later, on December 29, it entered amended findings of fact and conclusions of law, modifying the findings entered simultaneously with its judgment. The City of Dallas filed its notice of appeal on March 29, 1989, the ninetieth day after the amended findings.
        We have held that a second judgment, differing from the first only in that it deleted a factual recital that a party provided no expert witness, was a modification of an earlier judgment sufficient to restart the appellate timetable. See Miller v. Hernandez, 708 S.W.2d 25, 26 (Tex. App.--Dallas 1986, no writ). Therefore, if a judgment incorporates findings of fact and conclusions of law, and a subsequent judgment amends a finding in the earlier judgment, that modification is sufficient to start the time for appeal running again. Miller, 708 S.W.2d at 26; see also Southwest Craft Center v. Heilner, 670 S.W.2d 651, 655 (Tex. App.--San Antonio 1984, writ ref'd n.r.e.).
        Yet if a change in a finding recited in a judgment can restart the appellate timetable, the result should not change merely because a trial court announces its findings by an instrument separate from the instrument containing the court's actual decree. Although findings form no part of the judgment rendered, their inclusion in the judgment is proper. See Ellis v. Mortgage and Trust, Inc., 751 S.W.2d 721, 724 (Tex. App.--Fort Worth 1988, no writ). Separate instruments resulting from a single adjudication are to be construed as one instrument--as one judgment. See Ex parte Conoly, 732 S.W.2d 695, 700 (Tex. App.--Dallas 1987, orig. proceeding) (Whitham, J., dissenting). The majority appears to give precedence to form over substance. Because, in this case, the trial court chose to reduce its decretal to writing in one instrument and its findings in another instrument, the majority concludes that the trial court's judgment was not effectively modified.
        There is no dispute that the trial court filed its amended findings only eight days after the original judgment, within the period of its plenary jurisdiction. See TEX. R. CIV. P. 329b(d). The law seems clear that a change in a judgment, even if it is a change only in a recitation and not in a decretal provision, operates to restart the appellate timetable. I conclude, therefore, that the appellate timetable restarted to run in this case on December 29, 1988. In my opinion, the City timely filed its notice of appeal and successfully invoked the jurisdiction of this Court.
 
 
                                                  
                                                  JOHN WHITTINGTON
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
890432D.F
        
 
 
 
 
 
 
 
File Date[10-04-89]
File Name[890432DF]