OWENS-CORNING FIBERGLASS v. WASIAK, 883 S.W.2d 402 (Tex.App.-Austin 1994)

883 S.W.2d 402

No. 3-94-079-CV.Court of Appeals of Texas, Austin.
August 31, 1994.

Appeal from 147th Judicial District Court, Travis County, Paul R. Davis, Jr., J.

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Kevin F. Risley, Butler Binion, L.L.L., Houston, for appellant.

Brent M. Rosenthal, Baron Budd, P.C., Dallas, for appellees.

Before POWERS, ABOUSSIE and JONES, JJ.

ORDER
PER CURIAM.

On February 11, 1994, appellant Owens-Corning Fiberglas Corporation tendered a transcript to the Clerk of this Court for

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filing. Pursuant to Texas Rule of Appellate Procedure 56(a), the Clerk referred the matter of whether the appeal had been properly perfected to the Court. We conclude that the appeal has been properly perfected and will order the transcript filed.

I. DISCUSSION
The question we must decide is which of two judgments is the trial court’s final judgment. See Tex.R.Civ.P. 301 (only one final judgment shall be rendered in any cause except when otherwise specifically provided by law). On October 14, 1993, the trial court signed its first judgment in this cause. On October 20, 1993, the trial court signed a second judgment. The two judgments are identical except for the date signed. Owens-Corning seeks to appeal from the trial-court judgment signed October 20, 1993.

On November 19, 1993, Owens-Corning filed a motion for new trial. Tex.R.Civ.P. 329b(a). On January 18, 1994, Owens-Corning filed its cash deposit in lieu of appeal bond. Tex.R.App.P. 40(a)(1). If the October 20 judgment is the trial court’s final judgment, Owens-Corning filed a timely motion for new trial and timely perfected its appeal. If the October 14 judgment is the trial court’s final judgment, Owens-Corning’s motion for new trial was not timely and did not extend the time to perfect the appeal. If the October 20 judgment modified, corrected, reformed, or vacated the October 14 judgment, then the October 20 judgment (1) superseded the October 14 judgment, (2) is the trial court’s final judgment, and (3) extended the appellate timetables.

A. Did the October 20 Judgment Modify, Correct, or Reform the October 14 Judgment?

The October 20 judgment modified, corrected, or reformed the October 14 judgment if (1) the trial court acted within its period of plenary power when it signed the October 20 judgment, (2) the signatory date is a part of the judgment, and (3) the trial court’s action in signing the October 20 judgment did not impermissibly enlarge the time to file a motion for new trial.

1. Trial Court May Modify, Correct, Reform, or Vacate its Judgment During Its Period of Plenary Power.

A trial court has plenary power to reverse, modify, or vacate its judgment at any time before it becomes final. Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978). The trial court, regardless whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed. Tex.R.Civ.P. 329b(d). The trial court signed the October 20 judgment six days after signing the October 14 judgment, during the period of the trial court’s plenary power.

2. Is the Signature Date a Part of the Judgment Such That Signing a Second Judgment That Changes Only the Signature Date Extends the Appellate Timetables?
a. The Signature Date is a Part of the Judgment.

The date a judgment or order is signed determines the beginning of the periods prescribed by the Texas Rules of Civil Procedure for the court’s plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment or order. Tex.R.Civ.P. 306a(1). Although the absence of a showing of the date of signing does not invalidate a judgment, its omission is treated as a clerical error that may b corrected by judgment nunc pro tunc. Tex.R.Civ.P. 306a(2); Cyrus v. State, 601 S.W.2d 776, 777 (Tex.Civ.App. — Dallas 1980, writ ref’d n.r.e.). While a true nunc pro tunc judgment is rendered after the trial court loses plenary power, the trial court, of course, has authority to correct a clerical error during the period of plenary power and thereby extend the appellate timetables. See
Tex.R.Civ.P. 329b(h); Ferguson v. Naylor, 860 S.W.2d 123, 126 (Tex.App. — Amarillo 1993, writ denied) Alford v. Whaley, 794 S.W.2d 920, 922 (Tex.App. — Houston [1st Dist.] 1990, no writ); 6 Richard Orsinger, Texas Civil Practice Sec. 11.5 (1992 ed.) (alleged nunc pro tunc judgment signed during period of trial court’s plenary power over original judgment is not true nunc pro tunc

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judgment; it is modified judgment that supplants court’s former judgment and becomes court’s final judgment, from which appeal can be taken). Thus, if a trial court neglected to include the signature date in a judgment, or if a trial court rendered a judgment that incorrectly recited the date the judgment was signed, the trial court could, during its period of plenary power, sign a second judgment that included or corrected the signature date, thereby correcting the clerical error and extending the appellate timetables. Accordingly, we conclude that a signatory date included in the judgment is a part of the judgment.

b. A Second Judgment That Changes Only The SignatureDate Extends Appellate Timetables.

If a judgment is modified, corrected, or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed. Tex.R.Civ.P. 329b(h). Any change, whether material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the start of the appellate timetables until the date the modified, corrected, or reformed judgment is signed. Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988) (emphasis added); see also Clark v. McFerrin, 760 S.W.2d 822, 825 (Tex.App. — Corpus Christi 1988, writ denied) (reinstated judgment, identical to first except for date of entry qualified as modification, correction, or reformation of judgment and restarted appellate timetables); cf. Holder v. Holder, 808 S.W.2d 197, 198 (Tex.App. — El Paso 1991, no writ) (stating that second judgment signed within period of plenary power would begin appellate timetables even if only change was signatory date). We think Check means what it says and that any change made in a judgment while the trial court retains plenary power delays the start of the appellate timetables. Even if we set Check aside, however, we believe that a second judgment signed during the trial court’s period of plenary power and identical to the first except for the signature date may extend the appellate timetables with only limited exceptions.

3. When Does A Changed Signatory Date Not Extend Appellate Timetables?

We begin by reviewing pre-Check cases in which a second judgment signed during the trial court’s period of plenary power and identical to the first except for the signature date did not extend the appellate timetables Anderson v. Casebolt, 493 S.W.2d 509 (Tex. 1973) Nolan v. Bettis, 562 S.W.2d 520 (Tex.Civ.App. — Austin 1978, no writ); Stewart v. Fireman’s Relief Retirement Fund Trustees, 489 S.W.2d 743 (Tex.Civ.App. — Austin 1973, no writ); Chantre v. National Maritime Union Pension Welfare Plan, 425 S.W.2d 659
(Tex.Civ.App. — Beaumont 1968, no writ). See also Fireman’s Fund Ins. Co. v. Martinez, 387 S.W.2d 443
(Tex.Civ.App. — Austin 1965, writ ref’d n.r.e.) (trial court interlined new date on original judgment).

In Casebolt, the trial court rendered two judgments that were identical except for the signatory date Casebolt, 493 S.W.2d at 510. The second judgment was rendered[1] after the trial court’s period of plenary power expired.[2] The supreme court stated that a trial court may not render an order that simply affirms a former judgment and thereby enlarge the period for perfecting an appeal, citing a number of cases in support of the principle that Texas Rule of Civil Procedure

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5 bars such an action. Id. at 510 (citing A.F. Jones Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853, 855 (1952); Brown v. Vander Stucken, 435 S.W.2d 609, 611 (Tex.Civ.App. — San Antonio 1968, no writ); Chantre, 425 S.W.2d at 660 Martinez, 387 S.W.2d at 445; Bellmead State Bank v. Campbell, 386 S.W.2d 205, 207 (Tex.Civ.App. — Waco 1964, no writ); see also Nolan, 562 S.W.2d at 522; Stewart, 489 S.W.2d at 744. Becaus Casebolt is repeatedly cited for this proposition, we must determine the scope, purpose, and application of the rule announced in Casebolt.

a. Terms of Court Plenary Power
The source for the rule announced in Casebolt is Texas Rule of Civil Procedure 5. Rule 5 provides, in pertinent part: “The court may not enlarge the period for taking any action under the rules relating to new trials except as stated in these rules.”[3] Rule 5’s prohibition against enlarging the time to file a motion for new trial limits the trial court’s plenary power.

Before the adoption of Texas Rule of Civil Procedure 329b, the trial court’s plenary power continued until the end of the term of court in which the judgment was rendered, at which time the judgment became final.[4] The period within which a trial court could exercise its inherent power was modified in certain specified courts by the so-called Special Practices Act [hereinafter Act][5] and later, by the Texas Rules of Civil Procedure. Humble Exploration Co. v. Browning, 690 S.W.2d 321, 323 (Tex.App. — Dallas 1985, writ ref’d n.r.e.), cert. denied, 475 U.S. 1065, 106 S.Ct. 1376, 89 L.Ed.2d 602 (1986). The Act was the forerunner to Texas Rule of Civil Procedure 330 and present practice under Rules 329a and 329b. Tex.R.Civ.P.Ann. 329b cmt. (West 1977). The Act set timetables for filing, presenting, and determining motions for new trial. This scheme eliminated the problems associated with terms of court. See id.

In 1941, the Texas Rules of Civil Procedure became effective. The rules and subsequent amendments broadened the application of the Act in the district courts. The 1955 revisions to rules 320 and 330 and the adoption of new rules 329a and 329b sought to achieve uniformity of practice in all district courts with respect to motions for new trial. Id. This goal was finally achieved when noncontinuous terms in the district courts were abolished. See Act of May 6, 1955, 54th Leg., R.S., ch. 297, Sec. 1, 1955 Tex.Gen.Laws 806, 806 (Tex.Civ.Stat.Ann. art. 1919, Sec. 1, since repealed, see now Tex.Gov’t Code Ann. Sec. 24.012 (West 1988)).[6]

b. Purpose of Rule 5’s Prohibition Against Enlargement ofTime
The rules setting the timetables relating to motions for new trial and for taking appeal

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are meant to provide a uniform time when a judgment is final and to eliminate the uncertainty that was associated with tying the trial court’s period of plenary power to the term of court. See Tex.R.Civ.P.Ann. 329b cmt (West 1977). Rule 5 prevents the trial court from using its plenary power to circumvent the timetables relating to new trials and thereby undermine the rules’ underlying purposes. See Humble, 690 S.W.2d at 325, 328 (court should not act contrary to or in circumvention of rule, otherwise rule would have no meaning because court could by inherent power exempt itself from rule; when rule authorizes court to act in specific manner, court cannot act contrary to rule).

c. Scope of Rule 5’s Prohibition
Every time a trial court signs a modified, corrected, or reformed judgment, the time to file a motion for new trial is extended because the date the second judgment is signed becomes the date from which the time to file a motion for new trial is computed. Tex.R.Civ.P. 329b(h). Rule 329b(h) and Rule 5 do not conflict, however, because Rule 5 allows the trial court to enlarge the period for taking action under the rules relating to new trials if the rules make provision for such enlargement. Thus, the trial court can enlarge the time to file a motion for new trial by correcting, modifying, or reforming its judgment during its period of plenary power, with certain limitations. Tex.R.Civ.P. 329b(h); Check, 758 S.W.2d at 756 Casebolt, 493 S.W.2d at 510.

In A.F. Jones, Vander Stucken, Chantre, Martinez,
and Bellmead (the authorities relied on i Casebolt ), the trial court’s signing of the second judgment had the effect of enlarging the time to file a motion for new trial or perfect an appeal after the time to do so had expired under the rules setting those timetables, even though the court’s plenary power had not yet expired. See also Nolan, 562 S.W.2d at 522; Stewart, 489 S.W.2d at 744. In Casebolt, the trial court attempted to act in a similar manner outside its period of plenary power Casebolt, 493 S.W.2d at 510. In each case, the reviewing court, relying directly or indirectly on former Rule 5’s prohibition against enlargement of time, concluded that the judgments or orders did not extend the appellate timetables because former Rule 5 prohibited such enlargement of time Casebolt, 493 S.W.2d at 510; A.F. Jones, 246 S.W.2d at 855; Nolan, 562 S.W.2d at 522 Stewart, 489 S.W.2d at 744; Vander Stucken,
435 S.W.2d at 611; Chantre, 425 S.W.2d at 660 Martinez, 387 S.W.2d at 445; Bellmead, 386 S.W.2d at 207. We believe the scope of Rule 5’s prohibition is limited to (1) a trial court’s attempt to act outside its period of plenary power or (2) actions of the trial court, although taken while the court retains plenary power, that enlarge the time to file a motion for new trial after the time to do so has already expired under the rules. This reading of Rule 5 is consistent with the facts in both Casebolt
and the authorities on which it relies, our opinions on the subject,[7] and the purpose of Rule 5.

Casebolt has been more broadly applied. See Mackie v. McKenzie, 872 S.W.2d 11, 12 (Tex.App. — Texarkana 1994, writ requested) (court of appeals relied o Casebolt for proposition that new judgment signed during period of plenary power and before time to file motion for new trial expired served no other purpose than to extend appellate timetables and was without effect).[8] Th Mackie court, however, expanded Casebolt’s
application beyond its factual context. Additionally, we must construe the rules liberally so that the right to appeal is not lost by creating a requirement not absolutely necessary from

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the literal words of the rules. Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993). For these reasons, we decline to follow Mackie. So long as the trial court acts during its period of plenary power and before the time to file a motion for new trial expires, its actions do not run afoul of the rule in Casebolt.
d. The Original Scope of Rule 5’s Prohibition HasNarrowed With Changes in Timetables Governing Motions For NewTrial and Time to Appeal.

When Casebolt was decided, the Texas Rules of Civil Procedure prescribed deadlines for the filing of a motion for new trial and for perfecting appeal that passed before the trial court’s plenary power over its judgment expired.[9]
Today, a trial court no longer retains plenary power over its judgment after the time to file a motion for new trial or to perfect appeal has expired in the “ordinary appeal.”[10] The trial court’s period of plenary power over its judgment and the last day to file a motion for new trial or perfect appeal are the same: thirty days after the date the judgment is signed See Tex.R.Civ.P. 329b(a), (d); Tex.R.App.P. 41(a). In only one instance does the deadline to perfect an appeal expire before the end of the trial court’s period of plenary power. In an “extended appeal” (one in which either (1) a motion for new trial or to modify, correct, or reform the judgment, or (2) a request for findings of fact and conclusions of law is filed), the appellant must perfect the appeal within ninety days after the date the judgment is signed. See
Tex.R.App.P. 41(a)(1). If a motion for new trial or to modify, correct or reform the judgment is overruled on the seventy-fifth day after the judgment is signed, either by order or by operation of law, the trial court’s period of plenary power to change its judgment continues to the 105th day after the date the judgment was signed.[11] See
Tex.R.Civ.P. 329b(e); Tex.R.App.P. 41(a). In such a situation Casebolt may prohibit the trial court from rendering an order after the ninetieth day that simply affirms its former judgment thereby giving an aggrieved party a new opportunity to perfect an appeal after the initial ninety-day opportunity was lost. We do not decide this question, however, because it is not presented here.

4. Was The Sole Purpose of the October 20 Judgment to Enlarge the Time for Appeal?

In Casebolt, the supreme court concluded that the second judgment served no other purpose than to enlarge the time for appeal and based this conclusion on a recital in the trial court’s second order. Casebolt, 493 S.W.2d at 510. See also Nolan, 562 S.W.2d at 522 Stewart, 489 S.W.2d at 744; Chantre, 425 S.W.2d at 660; Martinez, 387 S.W.2d at 445 (in each case, reviewing court relied on

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recitations in record to conclude that sole purpose in signing judgment or order identical to first, or in interlining new date, was to extend time for appeal). Even if we assumed tha Casebolt applied to trial-court actions taken while the trial court retains plenary power and before the deadline to file a motion for new trial expires, we are unable to conclude that the sole purpose of the October 20 judgment was to extend the appellate deadlines.[12]

Neither the October 20 judgment nor the record in this cause indicate that the trial court’s purpose in signing the October 20 judgment was to extend the time to file a motion for new trial or perfect an appeal. The second judgment was signed only six days after the first and more than three weeks before the deadline to file the motion for new trial. Nothing in the record on or before October 20, 1993, indicated that Owens-Corning would fail to file a motion for new trial within thirty days after the October 14 judgment.

Moreover, we question whether it can ever be said that the sole purpose of a second judgment is to enlarge the appellate timetables, absent an express indication in the record. Consider, for example, the effect of a second judgment on the award of postjudgment interest. Here, the October 20 judgment, in addition to extending the appellate timetables, affected the date from which postjudgment interest accrued. The October 20 judgment recites that “postjudgment interest on the amounts owed by defendant to plaintiffs’ shall accrue at the rate of TEN PERCENT (10%) per annum from the date the judgment is signed until it is satisfied pursuant to Tex.Rev.Civ.Stat.Ann. art. 5069-1.05, Secs. 2 and 3.” See
Tex.Rev.Civ.Stat.Ann. art. 5069-1.05, Sec. 3 (West Supp. 1994). Thus, the trial court’s October 20 judgment changed the amount of postjudgment interest that accrued and did not merely affirm the first judgment.

Additionally, it is possible that the trial court signed the October 20 judgment because the signature date of the October 14 judgment was incorrect.[13] On this record, we are unable to conclude that the October 20 judgment served no other purpose than to extend the appellate timetable.

5. The October 20 Judgment Modified, Corrected, or Reformed the October 14 Judgment.

Casebolt was decided before the addition of subsection (h) to Rule 329b and the decision in Check. Casebolt construes Rule 5 and Check construes Rule 329b. As a general rule of construction, the rules must be harmonized when possible. See Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701, 704 (1962); U.S. Resources, Inc. v. Placke, 682 S.W.2d 403, 405 (Tex.App. — Austin 1984, no writ). Additionally, we reiterate our policy to construe the rules reasonably but liberally, when possible, so that the right to appeal is not lost by implying a requirement not absolutely necessary from the literal words of the rules Jamar, 868 S.W.2d at 319.

Casebolt does not stand for the proposition that a second judgment identical to the first except for the signatory date is insufficient to extend the appellate timetables Casebolt, 493 S.W.2d at 510; see also McFerrin, 760 S.W.2d at 825 (change in date of reinstated judgment modified judgment to start anew timetables for appellate review); Mesa Agro v. R.C. Dove Sons, 584 S.W.2d 506, 510 (Tex.Civ.App. — El Paso 1979, writ ref’d n.r.e.) (Rule 5 does not make distinction between second judgment that makes changes or corrects first judgment and one that is re-rendition of identical judgment). Cf. Holder, 808 S.W.2d at 198 (stating that second judgment signed within period of plenary

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power and identical to first except for signatory date would begin appellate timetables, citing Check ).

Rather, the Casebolt analysis should focus on whether a trial court renders an order simply affirming a former judgment (1) after its period of plenary power has expired or (2) during its period of plenary power but after the time to file a motion for new trial or perfect an appeal has expired and the record indicates that the sole purpose of the order was to extend the appellate timetables Casebolt, 493 S.W.2d at 510; Mesa Agro, 584 S.W.2d at 511. But see Thomas H. Crofts Jr. Perplexities of Post-Judgment Plenary Power, 20 Tex.Tech.L.Rev. 1129, 1148 (1989) (second judgment that merely substitutes another date of rendition or name of another judge probably would not be regarded as judgment that changes and, therefore, impliedly vacates prior judgment).

Here, the second judgment was signed six days after the first judgment; that is, the trial court signed the October 20 judgment during its period of plenary power and before any applicable deadline for filing a motion for new trial or perfecting an appeal had passed. The record is silent as to the trial court’s intent or purpose in signing the October 20 judgment. We hold that the October 20 judgment modified, corrected, or reformed the October 14 judgment.

B. Did the October 20 Judgment Vacate the October 14 Judgment?1. The Rule in Mullins v. Thomas
Neither the October 20 judgment nor the record in this cause demonstrate the trial court’s intent to vacate the October 14 judgment. In Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d 83, 84 (1941), the supreme court stated that the signing of a second judgment in the same case is not a vacation of the first judgment; if the first judgment does not affirmatively state that it is vacated, the second judgment is a nullity. At the time Mullins was decided, Revised Statutes article 2211 provided, in pertinent part: “Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.”[14] Revised Statutes, 39th Leg.R.S., Sec. 1, art. 2211, 1925 Tex.Rev.Civ.Stat. 1, 593 (since amended and repealed, see now Tex.R.Civ.P. 301). The rule in Mullins provided a reviewing court a means for determining which of two or more judgments should be treated as the trial court’s final judgment.

It is not necessary, however, that the second judgment expressly state that the first judgment is vacated. See B M Mach. Co. v. Avionic Enters, Inc., 566 S.W.2d 901, 901-02 (Tex. 1978) (second judgment’s caption showed that it reformed and, in effect, vacated first judgment); City of West Lake Hills v. State, 466 S.W.2d 722, 726 (Tex. 1971) (second judgment’s caption and provisions for costs of court enough to show that second judgment replaced first judgment and extended appellate deadlines). Mullins, B M, an City of West Lake Hills reflect the supreme court’s unwillingness to imply that the trial court’s act in signing a second judgment demonstrates an intent to vacate the first judgment, if nothing else in the record affirmatively shows the trial court’s intent to do so. These cases, however, were decided before the addition of subsection (h) to Rule 329b and the supreme court’s decision in Check.

2. Harmonizing Mullins and Check Check construed Rule 329b(h). Mullins is based on the one-final-judgment rule carried forward in Rule 301. Check did not expressly overrul Mullins. If we assume that Check did not implicitly overrule Mullins, then Check an Mullins must be

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read in a manner that harmonizes the rules and so that the right to appeal is not lost by creating a requirement not absolutely necessary from the literal language of the rules Jamar, 868 S.W.2d at 319; Placke, 682 S.W.2d at 405; Godeke, 355 S.W.2d at 704. Additionally, when the governing language in the rules is changed or amended, we presume a change is intended in the existing law Pelham Mfg. Co. v. Ridlehuber, 356 S.W.2d 502, 504 (Tex.Civ.App. — Waco 1962, writ ref’d n.r.e.).

Neither Rule 329b(h) nor Check require that the modified, corrected, or reformed judgment indicate the trial court’s intent to vacate the first judgment before the second judgment will be given effect. We believe that the supreme court’s promulgation of Rule 329b(h) and its decision i Check mean that any change in a judgment made by the trial court during its period of plenary power should be treated as a modified, corrected, or reformed judgment that presumptively vacates the trial court’s former judgment unless the record indicates a contrary intent. Crofts, 20 Tex.Tech L.Rev. at 1148 (supreme court obviously meant in Check
that subsequent judgments incorporating even immaterial and insubstantial changes qualify as modified judgments which presumably vacate pre-existing judgment by implication) See also Alford v. Whaley, 794 S.W.2d 920, 922 (Tex.App. — Houston [1st Dist.] 1990, no writ) (second judgment restarted appellate timetables even though neither second judgment nor record indicated that first judgment was vacated).[15] Nothing in the record indicates that the trial court did not intend to vacate the October 14 judgment. We hold that the October 20 judgment implicitly vacated the October 14 judgment. Thus, the October 20 judgment superseded the October 14 judgment. Ferguson v. Naylor, 860 S.W.2d 123, 127 (Tex.App. — Amarillo 1993, writ denied) (once judgment is vacated and reformed, it is superseded; original judgment is effectively dead, is not susceptible to appeal, and cannot become a final judgment from which an appeal can be taken; that second judgment repeats provisions of former judgment is not a factor to be considered). Accordingly, the October 20 judgment is the only final judgment in this cause.

CONCLUSION
We hold that the October 20 judgment operated to start the appellate timetables on the date it was signed. Thus, Owens-Corning timely filed its motion for new trial and cash deposit in lieu of appeal bond. Accordingly, we order the transcript filed as of the date received, February 11, 1994, and the first and second supplemental transcripts filed as of March 4, 1994, and March 25, 1994, respectively.

It is so ordered.