Jay Cohen v. Midtown Management District, Greater Southeast Management District, Harris County, the Harris County Department of Education, the Port of Houston Authority of Harris County, the Harris County Flood Control District, and the Harris County Hospital District , 490 S.W.3d 624 ( 2016 )


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  • Opinion issued March 8, 2016
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-14-00914-CV
    ———————————
    JAY COHEN, Appellant
    V.
    MIDTOWN MANAGEMENT DISTRICT, GREATER
    SOUTHEAST MANAGEMENT DISTRICT, HARRIS COUNTY,
    THE HARRIS COUNTY DEPARTMENT OF EDUCATION,
    THE PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY,
    THE HARRIS COUNTY FLOOD CONTROL DISTRICT,
    AND THE HARRIS COUNTY HOSPITAL DISTRICT, Appellees
    On Appeal from the 133rd District Court
    Harris County, Texas
    Trial Court Case No. 2013-16814
    OPINION
    In this tax delinquency suit, Jay Cohen challenges the enforceability of two
    judgments nunc pro tunc that the trial court entered after it lost its plenary power.
    Cohen asks for reinstatement of the original final judgment, claiming that the
    revisions were judicial and not clerical and, as a result, are void. We vacate the
    May 21, 2014 judgment nunc pro tunc, reinstate the July 25, 2014 judgment nunc
    pro tunc, and as reinstated, affirm.
    Background
    Cohen is the record owner of several parcels of real property within Harris
    County. Beginning in 2004, Cohen became delinquent on the taxes he owed on
    five of his tracts. In March 2013, the Greater Southeast Management District and
    the Midtown Management District, on behalf of themselves and all other taxing
    units for whom they collect, brought suit against Cohen for the taxes, penalties,
    and interest he owed, as well as attorney’s fees and costs.
    Harris County timely intervened on behalf of itself and other county-wide
    taxing authorities, namely, the Harris County Department of Education, the Port of
    Houston Authority of Harris County, the Harris County Flood Control District, the
    Harris County Hospital District, the City of Houston, Houston Independent School
    District (HISD), and Houston Community College System (HCCS) (collectively,
    the Harris County Taxing Units).
    Trial was set for November 2013. The taxing unit parties appeared. Cohen
    failed to appear. The trial court proceeded with trial. The taxing unit parties
    proffered the following evidence:
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     Certified delinquent tax records from the Tax Assessor/Collector for
    the Greater Southeast Management District showing the tax
    delinquencies on three of Cohen’s properties; and
     A certified delinquent tax statement prepared by the Harris County
    Tax Assessor-Collector for Cohen’s remaining two properties
    specifying the amount of delinquent taxes, penalties, and interest
    owed to each of the Harris County Taxing Units for the corresponding
    property.
    The trial court admitted the evidence and announced, “Judgment for Plaintiffs.”
    On November 15, 2013, the trial court signed a final judgment that
    incorporated descriptions of each of the five properties and charts corresponding to
    each parcel identifying the amounts that Cohen owed to each taxing unit,
    designated as “Gt. Southeast Mgt. Dist.,” “Midtown Mgt. Dist.,” “Harris County,”
    “City of Houston,” and “Houston ISD.”
    In June 2014, the Greater Southeast Management District moved for an
    order to amend the judgment nunc pro tunc. It explained that, although the trial
    court’s November 2013 judgment contained an award for the Houston Independent
    School District, it was not specifically identified, other than generally as a
    “Plaintiff Taxing Unit” on the first page of the judgment. The trial court granted
    the motion and signed the judgment nunc pro tunc on July 25, 2014. Like the
    November judgment, this judgment nunc pro tunc closes with the following
    paragraph:
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    IT IS ORDERED that all parties named in any pleadings filed by any
    party and not included in the judgment, and any property set out in
    previous pleadings not included in this judgment, are hereby
    dismissed without prejudice to the right to refile their claims. All
    relief previously requested and not herein granted is expressly denied.
    This judgment finally disposes of all parties and all claims and is
    appealable.
    Both the original final judgment and the first judgment nunc pro tunc also
    contain a provision that declares:
    IT IS ORDERED that the following taxing units, having been joined
    herein but having failed to plead and prove their claims for delinquent
    taxes on the above described real property, shall have their tax liens
    on such property extinguished for all delinquent taxes due, as of the
    date of this judgment, pursuant to the provisions of the Texas Property
    Tax Code, to wit
    NONE[.]
    Cohen invoked our jurisdiction by appealing the judgment nunc pro tunc.
    Approximately 18 months later, during the pendency of this appeal, Greater
    Southeast Management District moved for a second judgment nunc pro tunc. It
    explained that neither the original final judgment nor the first judgment nunc pro
    tunc showed the amounts that the trial court awarded to the Houston Community
    College System, despite it having been identified as a Plaintiff Taxing Unit on the
    first page of both judgments.        The District also requested amendment of the
    adjudged market values stated in the judgment for each property to correspond to
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    the amounts shown in the certified tax statements admitted at trial. The trial court
    granted the motion and signed that nunc pro tunc final judgment on May 21, 2015.
    Validity of Judgments Nunc Pro Tunc
    A.    Applicable Law and Standard of Review
    Once a trial court has lost plenary jurisdiction over a case, it may enter a
    judgment nunc pro tunc to correct any mistakes or misrecitals in the judgment only
    if the errors to be corrected are clerical rather than judicial. Dep’t of Transp. v.
    API Pipe & Supply, 
    397 S.W.3d 162
    , 167 (Tex. 2013); JG Wentworth
    Originations, LLC v. Freelon, 
    446 S.W.3d 426
    , 433 (Tex. App.—Houston [1st
    Dist.] 2014, no pet.). A clerical error is a discrepancy between the judgment
    entered into the record and the terms of the judgment that was actually rendered.
    Barton v. Gillespie, 
    178 S.W.3d 121
    , 126 (Tex. App.—Houston [1st Dist.] 2005,
    no pet.).
    Conversely, a judicial error is an error arising from a mistake of law or fact
    in the judgment as rendered that requires judicial reasoning to correct. Butler v.
    Cont’l Airlines, Inc., 
    31 S.W.3d 642
    , 647 (Tex. App.—Houston [1st Dist.] 2000,
    pet. denied). If an error is determined to be judicial rather than clerical, the change
    is void. API Pipe & 
    Supply, 397 S.W.3d at 167
    .
    Whether an error in the judgment is clerical or judicial is a question of law.
    Escobar v. Escobar, 
    711 S.W.2d 230
    , 232 (Tex. 1986). In deciding this issue, we
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    look to the judgment actually rendered and not to the judgment that should or
    might have been rendered. 
    Id. at 231.
    “Judgment is rendered when the trial court
    officially announces its decision in open court or by written memorandum filed
    with the clerk.” S & A Rest. Corp. v. Leal, 
    892 S.W.2d 855
    , 857 (Tex. 1995). We
    consider as fact issues whether the court pronounced judgment orally and the terms
    of the pronouncement. Hernandez v. Lopez, 
    288 S.W.3d 180
    , 185 (Tex. App.—
    Houston [1st Dist.] 2009, no pet.).
    We affirm the judgment nunc pro tunc if the evidence clearly and
    convincingly shows that it corrects a clerical error. See 
    id. Cohen challenges
    the trial court’s corrections as judicial in part because the
    evidence supporting them was not incorporated, either by attachment or reference,
    into the judgment. Incorporation, however, is not required. For the purpose of
    determining whether entry of a nunc pro tunc judgment is proper, a court may rely
    on the oral testimony of witnesses, written documents, previous judgments, docket
    entries, or the trial judge’s personal recollection. 
    Id. B. Analysis
    Cohen contends that both judgments nunc pro tunc are void because they
    attempted to correct judicial errors. We consider each of the three amendments—
    one in the first judgment nunc pro tunc and two in the second judgment nunc pro
    tunc—in turn.
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    Cohen challenges the first amendment, which inserts “HISD” into the list of
    “Plaintiff Taxing Units” as judicial because the trial court’s oral rendition of
    “Judgment for Plaintiffs” did not include “all Plaintiffs and Intervenors.” We
    disagree. The Management Districts’ original petition brought the tax delinquency
    claims for themselves and “on behalf of all other taxing units.” The trial court
    rendered judgment for all plaintiffs, without exclusion, based on the evidence of
    tax delinquencies, including those owed to HISD.
    The original final judgment supports the conclusion that the trial court’s
    reference to “Plaintiffs” includes HISD.        It provides: “On the 15th day of
    November, 2013, this cause being called in its regular order, came the Plaintiff
    Taxing Unit(s) whether Plaintiff(s), Intervenor(s) or Impleaded Plaintiff(s)”
    (emphasis added). Following that prefatory language appears a list of all plaintiffs
    and intervenors except for HISD. The second page of the judgment identifies and
    awards compensation to HISD as a taxing unit.
    No evidence supports a finding that the trial court meant to exclude HISD in
    its use of the term “Plaintiffs.” We hold that the trial court’s correction in the first
    judgment nunc pro tunc to list HISD among the plaintiffs on the first page of its
    judgment is a clerical one.
    The second amendment corrects the omission of the amounts awarded to
    HCCS. HCCS is identified as a “Plaintiff Taxing Unit” on the first page of the
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    original final judgment, and the amounts that Cohen owed HCCS are included in
    the uncontroverted evidence before the trial court. The amendment is consistent
    with the trial court’s broad oral rendition of judgment.
    But the record more strongly supports the conclusion that this amendment is
    not merely clerical. An error in drafting a judgment, even one that omits a party’s
    name, may become part of the judgment the court renders. See LaGoye v. Victoria
    Wood Condo. Ass’n, 
    112 S.W.3d 777
    , 784 (Tex. App.—Houston [14th Dist.] 2003,
    no pet.) (holding that judgment erroneously drafted to include named party as
    summary judgment movant contained judicial error that could not be corrected
    after trial court’s jurisdiction expired) (citing In re Fuselier, 
    56 S.W.3d 265
    , 268
    (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding)). “[E]rrors in rendered
    and entered judgments are not clerical merely because they are based upon or grow
    out of clerical errors.” Finlay v. Jones, 
    435 S.W.2d 136
    , 138 (Tex. 1968) (citing
    Love v. State Bank & Trust Co., 
    90 S.W.2d 819
    (Tex. 1936)). “[P]rovisions
    alleged to have been inserted by mistake of the attorney nevertheless become a part
    of the court’s judgment and therefore are judicial errors when thus rendered in
    writing by the court.” Dikeman v. Snell, 
    490 S.W.2d 183
    , 185–86 (Tex. 1973)
    (orig. proceeding), quoted in In re Daredia, 
    317 S.W.3d 247
    , 249 (Tex. 2010) (per
    curiam) (orig. proceeding).
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    The final judgment in this case follows an oral rendition, but that oral
    rendition by no means captured all of the specifics that are essential to the
    judgment.    The final written judgment, signed the same day the trial court
    pronounced “Judgment for Plaintiffs,” specifies the plaintiffs’ pro rata shares of the
    tax debt, penalties, and interest.     The written judgment thus constitutes an
    extension of the rendition, not merely a clerical recording of the oral
    pronouncement.
    The first page of the judgment, while identifying HCCS as a plaintiff, does
    not identify it as a recovering plaintiff. The judgment declares that no joined
    plaintiff failed to plead and prove its claims for delinquent taxes on Cohen’s
    property, but the last page of the judgment dismisses any party set out in previous
    pleadings but not included in the judgment. This dismissal can be read to include
    HCCS without doing violence to the judgment’s other provisions. Further, with
    respect to HCCS, the first judgment nunc pro tunc contains the same language as
    the original judgment.
    The second amendment purports to make a substantive change, increasing
    the amount of the judgment against Cohen by an additional $4058.06. The record
    lacks clear and convincing evidence that this alteration is clerical. We therefore
    hold that the second amendment is void.
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    Likewise, the change to the adjudged market values for four of the five tracts
    listed in the judgment is not a clerical change. It does not comport with the record
    evidence the trial court relied on in rendering judgment for the taxing units. Under
    the Property Tax Code, the adjudged value refers to the trial court’s determination
    of market value on the date of trial. See TEX. TAX CODE ANN. § 33.50 (West 2015)
    (providing that “[t]he appraised value of the property according to the most recent
    appraisal roll approved by the appraisal review board is presumed to be its market
    value on the date of trial”). The certified delinquent tax statement for each tract
    identified its 2013 value, and these values were included in the original judgment
    and first judgment nunc pro tunc. The entry for only one of the tracks contains the
    market value reflected in the record, and that entry remains unchanged from both
    the original judgment and the first judgment nunc pro tunc. The record contains
    neither evidence nor explanation for any increase in values for the remaining four
    tracts. Accordingly, the changes to the market values for those tracts are void.
    Conclusion
    We hold that the judgment nunc pro tunc entered on May 21, 2015, insofar
    as it purports to award damages to HCCS and change the adjudged market values
    for Tracts 1, 2, 3, and 5 is void. We further hold that the July 25, 2014 judgment
    nunc pro tunc, which corrects the judgment to include HCCS in the list of plaintiffs
    appearing on the first page, is valid. We therefore vacate the May 21, 2015
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    judgment nunc pro tunc, reinstate the July 25, 2014 judgment nunc pro tunc, and
    affirm that judgment.
    Jane Bland
    Justice
    Panel consists of Justices Jennings, Keyes, and Bland.
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