      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00404-CV



                                  Johnnie M. Charles, Appellant

                                                  v.

         Texas Property and Casualty Insurance Guaranty Association, on behalf of
                 Phico Insurance Company, an Impaired Carrier, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
      NO. D-1-GN-05-001707, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This is a restricted appeal from an order of dismissal nunc pro tunc. Appellant

Johnnie M. Charles appeals from the trial court’s order dismissing the cause without prejudice in

favor of appellee. For the reasons discussed below, we affirm the trial court’s order.


                        FACTS AND PROCEDURAL BACKGROUND

               Ms. Charles filed suit in Jefferson County on November 24, 2004, to appeal the

decision of the Texas Workers’ Compensation Commission setting her impairment rating at 14%.

Appellee filed a motion to transfer venue to Travis County, which was heard and granted by the trial

court on April 21, 2005. After the cause was transferred to Travis County, appellee filed a motion

to dismiss for want of prosecution because Charles failed to pay the filing fees as required under rule

89 of the Texas Rules of Civil Procedure. The Travis County District Court held a hearing and
granted appellee’s motion to dismiss on October 6, 2005. Due to a clerical error, the trial court’s

order of dismissal was entered in the wrong cause number—GN 400-054, instead of GN 501-707.

Therefore, on December 2, 2005, the trial court signed a nunc pro tunc order of dismissal in the

correct cause number. In a restricted appeal, Charles appeals from this nunc pro tunc order.


                                           ANALYSIS

               In three issues, Charles contends that the trial court erred in (i) granting appellee’s

motion to dismiss for want of prosecution, (ii) failing to have a court reporter make a record of the

proceedings on December 2, 2005, and (iii) conducting a hearing on appellee’s motion to dismiss

on October 6, 2005. Appellee counters that this Court lacks jurisdiction over Charles’s issues

regarding the order of dismissal signed on October 6, 2005, because Charles’s notice of appeal is

untimely as to those issues. Appellee further urges that, in her remaining issue, Charles fails to

demonstrate error on the face of the record that led to the rendition of an improper judgment.

               In her first and third issues, Charles complains of errors regarding the trial court’s

original order of dismissal signed on October 6, 2005. We agree with appellee, however, that

this Court lacks authority to consider these two issues. Because the trial court’s order was signed

on October 6, 2005, and none of the parties filed a motion to extend the trial court’s plenary power,

Charles was required to file her notice of appeal within 30 days.1 See Tex. R. App. P. 26.1 (time for

appeal runs from the date judgment was signed). A nunc pro tunc order does not extend the

deadlines for perfecting an appeal. Cavalier Corp. v. Store Enter., Inc., 742 S.W.2d 785, 787


       1
         To perfect a restricted appeal from this order, Charles was required to file her notice of
appeal within six months after the order was signed. See Tex. R. App. P. 26.1(c).

                                                 2
(Tex. App.—Dallas 1987, writ denied). Had the trial court timely exercised its plenary power to

modify or correct the order in any respect, the time for appeal would run from the date the modified

order was signed. See Garza v. Serrato, 671 S.W.2d 713, 714 (Tex. App.—San Antonio 1984,

no writ). If, however, the trial court corrects a mistake by way of an order nunc pro tunc after its

plenary power expires, then the court of appeals has no authority to consider any complaint that

could have been presented in an appeal from the original order. See Pruet v. Coastal States Trading,

Inc., 715 S.W.2d 702, 704 (Tex. App.—Houston [1st Dist.] 1986, no writ).

                In this case, Charles did not file her notice of appeal until May 31, 2006—more than

six months after the trial court signed the original order of dismissal. Although the trial court signed

an order of dismissal nunc pro tunc on December 2, 2005, that order did not extend Charles’s

deadlines for filing her notice of appeal from the original order signed on October 6, 2005. See

Cavalier Corp., 742 S.W.2d at 787.

                In support of her arguments that the trial court erred in holding a hearing on

October 6, 2005, and erred in signing the original order of dismissal, Charles urges us to consider

the effects of Hurricane Rita on herself and her counsel. The record reflects that Charles and her

counsel live in Jefferson County—one of several counties in southeast Texas affected by natural

disaster when Hurricane Rita came ashore in late September 2005. As a result of the damage

and devastation caused by Hurricane Rita, many Texas courts were closed during September and

October 2005. The supreme court issued an emergency order extending all filing deadlines until

October 31, 2005. See Emergency Order on Enlargement of Time, Misc. Docket No. 05-9168




                                                   3
(Tex. Sept. 26, 2005).2 The supreme court’s order also instructs other Texas courts to consider the

dislocation of counsel when determining whether to grant extensions of time for good cause. Id.

In addition, Charles’s counsel filed an affidavit stating that he evacuated his home and office on

September 22, 2005; he did not reopen his office until October 10, 2005; and his residence was

without power until October 28, 2005.

               While we are sympathetic to Charles and her counsel and the effects they suffered as

a result of Hurricane Rita, the record reflects that neither Charles nor her counsel took any steps to

communicate these issues to either the trial court or opposing counsel. Although counsel’s affidavit

states that he did not reopen his office until October 10, 2005, there is evidence that on September

27, 2005, someone in counsel’s office signed for the notice of hearing on appellee’s motion to

dismiss. Thus, Charles, through counsel, had notice of the October 6 hearing. But there is no

indication that Charles or counsel made any attempt to inform the court or opposing counsel that they

would not be able to attend the hearing. Moreover, even though the affidavit filed by Charles’s

counsel states that “things did not approach normal until January 2006,” neither Charles nor her

counsel made any attempt to pursue Charles’s case until May 31, 2006—over five months later and

the last day on which Charles could file a notice of restricted appeal from the trial court’s order of

dismissal nunc pro tunc. See Tex. R. App. P. 26.1(c). There is no indication in the record that

Charles or her counsel attempted to communicate with either the trial court or opposing counsel prior




       2
          A copy of the supreme court’s order is available on the court’s website at www.supreme.
courts.state.tx.us/MiscDocket/05/05916800.pdf.

                                                  4
to May 31, 2006. Without any communication from either Charles or her counsel, the trial court had

no reason to grant a continuance or extension of time.

               The first and third issues raised by Charles pertain to the trial court’s original order

of dismissal and could have been presented in an appeal from that order. See Gonzalez v. Doctors

Hosp., 814 S.W.2d 536, 537 (Tex. App.—Houston [1st Dist.] 1991, no writ) (citing Gonzalez v.

Rickman, 762 S.W.2d 277, 278 (Tex. App.—Austin 1988, no writ)). Because Charles filed her

notice of appeal more than six months after the trial court signed the original order of dismissal, it

was untimely with respect to that order, and we have no authority to consider Charles’s first and third

issues. Id.; Pruet, 715 S.W.2d at 704. Charles’s first and third issues are overruled.

               In her second issue, Charles contends that the trial court erred in failing to have a

court reporter “take down the proceedings” on December 2, 2005, when the court signed the order

of dismissal nunc pro tunc. Because Charles has filed a restricted appeal, we review the trial court’s

order of dismissal nunc pro tunc for reversible error. Tex. R. App. P. 44.1; Guadalupe Econ. Servs.

Corp. v. DeHoyos, 183 S.W.3d 712, 715 (Tex. App.—Austin 2005, no pet.). To obtain reversal in

a restricted appeal, Charles must demonstrate error on the face of the record that “probably caused

the rendition of an improper judgment” or “probably prevented Charles from properly presenting the

case to the court of appeals.” Tex. R. App. P. 44.1(a); Guadalupe Econ. Servs., 183 S.W.3d at 715.

               It is undisputed that the trial court’s order of dismissal nunc pro tunc signed on

December 2, 2005, corrected a clerical, and not a judicial, error in the original order of dismissal

signed on October 6, 2005. A clerical error is a discrepancy between the entry of an order in the

official record and the order as it was actually rendered. See Universal Underwriters Ins. Co. v.



                                                  5
Ferguson, 471 S.W.2d 28, 29-30 (Tex. 1971). Rule 316 of the Texas Rules of Civil Procedure

allows a court to correct clerical errors in open court. Tex. R. Civ. P. 316. There is nothing in the

rule that requires the court to hold a hearing or have a court reporter present to record the

proceedings when it corrects a clerical error. Id. Because the question whether the error corrected

was clerical or judicial is a legal one, the purpose of a hearing is not for the receipt of evidence but

merely for argument. See Findlay v. Jones, 435 S.W.2d 136, 138 (Tex. 1968).

                Contrary to Charles’s assertions, there is no indication in the record that the trial court

held a hearing when it signed the order of dismissal nunc pro tunc on December 2, 2005. Charles

cites no authority for the proposition that the trial court was required to hold a hearing prior to

signing the order of dismissal nunc pro tunc or to have a court reporter present at the time the order

was signed, and we have found none.

                Although Charles cites three cases for the proposition that reversal is required when

Charles, through no fault of her own, cannot obtain a statement of facts, these cases are inapposite.

In support of her argument, Charles cites Chase Bank of Texas, N.A. v. Harris County Water Control

and Improvement District No. 109, 36 S.W.3d 654 (Tex. App.—Houston [14th Dist.] 2000, no pet.)

(op. on reh’g); In re K. B. A., 145 S.W.3d 685 (Tex. App.—Fort Worth 2004, no pet.); and Pittman

v. Baptist Memorial Hospital System, 574 S.W.2d 190 (Tex. Civ. App.—San Antonio 1978, no writ).

In Chase Bank, the Houston court of appeals held that the lack of a reporter’s record required

reversal in a post-answer default judgment proceeding. 36 S.W.3d at 655-56. The Fort Worth

court of appeals reached the same conclusion in In re K. B. A., 145 S.W.3d at 689-90, as did




                                                    6
the San Antonio court of appeals in Pittman, 574 S.W.2d at 192-93. As the Fort Worth court of

appeals explained,


       Unlike a no-answer default judgment where a defendant admits the petition’s
       allegations by his failure to answer, a post-answer default judgment constitutes
       neither an abandonment of defendant’s answer nor an implied confession. . . .
       Therefore, judgment cannot be entered on the pleadings and the petitioner in such a
       case must offer evidence and prove his case.


In re K. B. A., 145 S.W.3d at 690.

               In contrast, the instant case is not a post-answer default judgment proceeding.

Because the purpose of an order of dismissal nunc pro tunc is to correct a clerical error in the

original order of dismissal after the trial court’s plenary power has expired, see West Tex. State Bank

v. General Res. Mgmt. Corp., 723 S.W.2d 304, 306 (Tex. App.—Austin 1987, writ ref’d n.r.e.), and

the decision whether the error was clerical or judicial is a legal question, see Findlay, 435 S.W.2d

at 138, there was no need for the trial court to take evidence, much less hold a hearing, prior to

signing the order of dismissal nunc pro tunc. Moreover, Charles does not complain about

the inability to get a statement of facts from the hearing on the original order of dismissal but,

instead, complains about the lack of a record regarding the trial court’s signing of the order of

dismissal nunc pro tunc—an order that merely corrects a clerical error and does not alter the legal

substance of the original order of dismissal. The cases cited by Charles are distinguishable on both

the law and the facts.

               Having concluded that the trial court was not required to hold a hearing prior to

signing the order of dismissal nunc pro tunc, there was no requirement for a court reporter to record



                                                  7
the proceedings. Charles has failed to demonstrate error on the face of the record that probably

caused the rendition of an improper judgment or prevented Charles from presenting her appeal to

this Court. See Tex. R. App. P. 44.1(a). We overrule Charles’s second issue on appeal.


                                         CONCLUSION

                 Having overruled Charles’s issues, we affirm the trial court’s order of dismissal

nunc pro tunc.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: March 6, 2007




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