Bryan v. Resolution Trust Corp. , 823 S.W.2d 433 ( 1992 )

OPINION

HUGHES, Justice.

This appeal is taken from the trial court’s modification of a final judgment that expressly ordered that Bill M. Bryan (appellant) take nothing on his counterclaims against Resolution Trust Corporation, as receiver of Texasbanc Savings Association, Texasbanc Savings FSB, Statewide Pawn, Inc., and John A. Clark (appel-lees). We affirm.

On March 17, 1991, Bryan purchased from Statewide Pawn, Inc. real property, located at 1716 N. Gordon, Alvin, Texas. Texasbanc Savings Association provided $425,000 to finance the sale. In exchange, it received a deed of trust and a promissory note from Bryan. On that same date, Bryan entered into a separate agreement to purchase Statewide Pawn, Inc.’s inventory and accounts receivable. Texasbanc Savings Association provided $10,000 for financing that purchase also. In exchange, it received a security interest in both the inventory and accounts receivable, as well as a promissory note.

On September 7, 1990, Resolution’ Trust Corporation (RTC), as successor in interest to TexasBanc Savings Association, filed suit on the real estate note. It was assigned cause number 90M2046. In addition to monetary recovery, RTC sought and received injunctive relief, which prevented Bryan from removing inventory, fixtures, or accounts from the pawn shop. On September 12, 1990, under the same cause number, Bryan filed a counterclaims against appellees alleging fraud in the inducement, failure of consideration and breach of contract. Appellees received service of citation and notice of the counterclaims as follows: RTC on October 24, 1991; TexasBanc Savings FSB on November 1, 1990; John A. Clark on November 5, 1991; and Statewide Pawn Inc., on November 8, 1990.

A settlement hearing on cause 90M2046, was conducted on September 19, 1990. Clark, who represented both RTC and Tex-asbanc at the hearing, stated that a settlement had been reached, and that the temporary injunction was no longer needed. Appellant’s counsel then read the terms of the agreement into the record. On October 19, 1990, the trial court’s final judgment was signed, reflecting the terms of the settlement. Thereafter, service was obtained on appellees, and appellant continued to prosecute his counterclaims against them. In response, on November 16, 1990, appellees filed a motion to “modify, correct or reform judgment or in the alternative, motion for new trial.”

On December 10, 1990, the trial court entered a modified final judgment into the records. This judgment expressly reflected that appellant was to take nothing on his counterclaims.

In his first point of error, appellant asserts that the trial court erred, and abused its discretion, in modifying the final judgment because: (1) the agreed judgment entered on October 19, 1990, was not intended to dispose of or bar appellant’s counterclaims; (2) res judicata did not bar appellant’s counterclaims; and (3) the counterclaims were not a compulsory counterclaims. In his second point of error, appellant asserts that the trial court erred in entering the modified final judgment containing an order that appellant take nothing on his counterclaim.

Typically, a trial court has authority to correct “judicial errors” before the expiration of its plenary power. West Texas State Bank v. General Resources Management Corp., 723 S.W.2d 304, 306 (Tex.App. — Austin 1987, writ ref'd n.r.e.); Tex.R.Civ.P. 329b(d). After the expiration of its plenary power, a trial court still maintains inherent authority to correct clerical errors. See Seago v. Bell, 764 S.W.2d 362, 363 (Tex.App. — Beaumont 1989, no writ). A trial court does not abuse its discretion in modifying a judgment so long as it does not review or change the fact finding made at the time of its first judgment. First Nat’l Bank in Dallas v. Walker, 544 S.W.2d 778, 782 (Tex.Civ.App. — Dallas 1976, no writ).

In this case, the trial court’s modification of its final judgment occurred before the expiration of its plenary power. The original final judgment reflects that “On this the 19th day of September, 1990, the above styled and numbered cause of action was called for hearing before the Court ... both parties announce ready and that a final agreement of all matters had been reached” (Emphasis added.) We note, both the trial court’s docket sheets and appellant’s pleading reflect, that the counterclaim ¹ on cause number 90M2046 was filed on September 12, 1990, prior to the original judgment. Consequently we conclude that the trial court’s modification of its original final judgment, is at most, a mere clarification. And, the original judgment implicitly denied appellant relief on his counterclaim.

We hold that the trial court did not abuse its discretion in modifying the final judgment in this case. Appellant’s points of error one and two are overruled. The judgment of the trial court is affirmed.

DUNN, J., dissents.

1 . In his brief, appellant asserts that he mistakenly filed his pleadings as a counterclaim instead of as a petition. He has not demonstrated, nor does our review of the record reflect, that he apprised the trial court of this “mistake.” Consequently, any error arising from this "mistake" is waived. Tex.R.App.P. 50(d). Moreover, we find appellant’s true motivation suspect. He filed the instrument as a counterclaim, under cause number 90M2046, and referred to the parties as "counter-plaintiff’ and "counter-defendant.” Then, in direct violation of both the letter and spirit of Tex.R-Civ.P. 21 he did not serve appellees with notice of the counterclaim until more than a month after he had filed the counterclaim with the court and well after the date of the settlement hearing.