Ungranting of new trial affirmed because order granting new trial was signed by mistake

Craig Jerry Stepan v. The State of Texas (Tex.App.- Austin, Jan. 17, 2008)

O P I N I O N

Appellant Craig Jerry Stepan was convicted of possessing less than one gram of methamphetamine and sentenced to twenty-one months in state jail. See Tex. Health & Safety Code Ann. § 481.115(a), (b) (West 2003). The trial court subsequently signed an order granting appellant's motion for new trial, but the court later rescinded that order on the ground that it had been signed by mistake. See Tex. R. App. P. 21.8(b) (new trial must be granted by written order). In his only point of error, appellant contends that the trial court was not authorized to vacate or rescind the new trial order. We overrule this contention and affirm the judgment of conviction.

Appellant was tried and sentenced on April 10, 2007. On April 16, his counsel filed a motion for new trial alleging that appellant's guilty plea had been involuntary. Attached to the motion was a prepared order reading, "On ______, 2007, came on to be considered Craig Jerry Stepan's Motion for New Trial and Motion in Arrest of Judgment, and said motion is hereby (Granted) (Denied)." The trial court set a hearing on the motion for new trial for May 2, but the record reflects that the hearing was never held.

On May 9, 2007, the court conducted a hearing on defense counsel's motion to withdraw, which had also been filed on April 16, and orally granted the motion. The court also signed the prepared order attached to the motion for new trial. The court entered the May 9 date and circled the word "Granted."

On June 28, 2007, the court signed a "nunc pro tunc order sua sponte correcting previous order signed by mistake on May 9, 2007." This order reads:

Whereas on May 9, 2007, a hearing was conducted on the Defendant's Attorney's Motion to Withdraw in the above case. At the conclusion of the hearing said motion was granted on the record in open court, but the order was not signed.

On May 9, 2007, no hearing was conducted on Defendant's Motion for New Trial, but the Order granting the new trial was signed. The court mistakenly signed the wrong order.

Now therefore the court enters this Order Nunc Pro Tunc correcting the record to show that the attorney's Motion to Withdraw was and is granted and the Defendant's Motion for New Trial was not heard or ruled upon.

Furthermore, the Order Granting the New Trial signed on May 9, 2007, is hereby vacated and set aside as being mistakenly signed.

On the same date, the court wrote on the face of the May 9 new trial order, "Signed by mistake" and "Intended to sign order granting atty mot. to W/D." Appellant thereafter gave notice of appeal.

Citing Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998), appellant argues that a trial court may set aside an order granting a motion for new trial only during the seventy-five day period prescribed by rule for granting or denying such motions. See Tex. R. App. P. 21.8(a) (court must rule on motion for new trial within seventy-five days after sentence imposed or suspended in open court). June 28, 2007, was the seventy-ninth day after appellant's sentence was imposed. Thus, appellant contends that the trial court's order setting aside the May 9 order granting the motion for new trial is void. In order to understand the holding in Awadelkariem and why we conclude that appellant's reading of it is incorrect, we must review two earlier opinions regarding the finality of an order granting a new trial.

In Matthews v. State, 50 S.W. 368 (Tex. Crim. App. 1899), the trial court granted the defendant's motion for new trial on the day after he was convicted of cattle theft. Id. Later that same day, the trial court signed an order setting aside the new trial order and overruling the motion for new trial. Id. In this later order, the court stated that the previous order had been made "under a misapprehension of the evidence complained of by defendant in his motion." Id. The court of criminal appeals held that the trial court was without authority to set aside its original order: "[T]he action of the court on the motion [for new trial] ought to be regarded as final, and . . . the court would have no authority, after he had granted the motion for new trial, afterwards, on the same day or on some other day of the term, to again call the case up, set the order aside granting the motion, and overrule it." Id. at 369.

The holding in Matthews was reconsidered in English v. State, 592 S.W.2d 949 (Tex. Crim. App. 1980). In English, a visiting judge sitting for the judge who presided over the defendant's trial signed an order granting the defendant's amended motion for new trial. Id. at 955. Three days later, the visiting judge wrote on the face of this order that it "was signed inadvertently and by mistake and the order was not intended to have any legal effect." Id. At a hearing, the following day before the regular trial judge, the visiting judge testified that the order was among a group of papers that had been handed to him (while on the bench) for his signature, he did not intend to grant the defendant a new trial, he knew nothing about the defendant's case, no hearing had been held on the motion for new trial, and he had been under the impression that he was signing an order granting leave to file the amended motion. Id. The regular trial judge found that the order granting the new trial was void. Id. The defendant challenged this ruling, citing Matthews. Id. The court of criminal appeals ruled that Matthews was distinguishable:

In Matthews it appears that the trial court granted the defendant's motion for new trial, then attempted to set aside its order because it had been under a "misapprehension of the evidence complained of by defendant in his motion for new trial." The instant case is distinguishable. The court in this case did not knowingly grant the motion for new trial and then decide to retract its decision. The court was not even aware that it was granting a motion for new trial when it signed the order. No hearing was held in this case; no evidence was adduced from which the court could have knowingly granted a new trial. The signing of an order form is not all there is to granting a new trial.

Further, the court's error in this case does not strike us as a judicial error, as certainly was the case in Matthews. The error here is more akin to clerical error, which can be corrected.
Id. 955-56. In clarifying its holding, the court in English overruled Matthews to the extent that it could be construed to conflict with its holding. Id. at 956. Thus, under Matthews as modified by English, the rule was established that "a trial court cannot rescind an order granting a new trial absent clerical errors." Ex parte Drewery, 677 S.W.2d 533, 536 (Tex. Crim. App. 1984).

This remained the rule until Awadelkariem. In that case, the defendant, after pleading not guilty, was convicted of the charged offense and sentenced to eight years' imprisonment, probated. 974 S.W.2d at 722. Later that day, the defendant and his counsel approached the trial court and offered to change his plea to guilty if the court would grant him deferred adjudication. Id. at 723. The court agreed and signed an order granting the defendant a new trial. Id. The defendant later reneged on his promise to enter a guilty plea, and the trial court rescinded its new trial order. Id. The court of appeals, citing Matthews, held that the trial court was not authorized to set aside the order granting a new trial that it had knowingly and deliberately signed. Id. (1) The court of criminal appeals, after tracing the history of the Matthews rule through English and other later opinions, and after discussing the practice in other jurisdictions and in Texas civil cases, concluded that "the Matthews rule, having always rested on questionable foundations, is no longer viable." Id. at 728. The court continued:

Nevertheless, . . . [we] conclude that a time limitation must exist on the power to rescind a new trial order. The appellate rules give a trial court 75 days after judgment is imposed or suspended in open court to rule upon a motion for new trial.[ (2)] We hold that an order granting or denying a motion for new trial may be freely rescinded so long as such action occurs within the 75 days provided by the rules (i.e., current Rule 21.8(a) & (c)); to the extent that Matthews and its progeny were held to apply during this time period, they are overruled. However, after the 75 day period expires, an order granting or denying a new trial becomes "final," and Matthews and its progeny control. Id. Because the trial court rescinded its order granting Awadelkariem a new trial within the seventy-five days allowed by rule 21.8, the recision was effective. Id.

In summary, before Awadelkariem, a trial court could not set aside an order granting a new trial that it had knowingly and intentionally signed, even if it had done so under a misapprehension of the pertinent facts or law (Matthews), but a trial court could set aside a new trial order that it had unintentionally and inadvertently signed (English). After Awadelkariem, a trial court may freely set aside an order granting a motion for new trial, regardless of the circumstances under which it was signed, so long as the court acts within the seventy-five day period after sentence is imposed.

Appellant argues that the Awadelkariem opinion should be read to create a bright-line, seventy-five day period within which an order granting a new trial can be changed and outside of which it is final and cannot be altered for any reason. However, contrary to appellant's interpretation of Awadelkariem, the trial court does not lose all authority to revisit an order granting a new trial after the seventy-five day period has expired. Instead, according to Awadelkariem, after the expiration of seventy-five days, "Matthews and its progeny control." Id. We read this to mean that the court of criminal appeals intended to overrule the pre-Awadelkariem rule for the seventy-five day period after sentence is imposed, and then to revert to the pre-Awadelkariem rule after the seventy-five day period ends. This would include not only Matthews, but also English and other post-Matthews "clerical error" opinions discussed in Awadelkariem as the "progeny" of Matthews. Therefore, we believe that the most comprehensive reading of Awadelkariem is that within seventy-five days following the imposition of sentence, an order granting a motion for new trial can be freely revisited and set aside, but after the seventy-five days, an order granting a motion for new trial can be set aside only if it was inadvertently signed as a result of clerical error. Otherwise, we would be reading the phrase "and its progeny" (when referring to Matthews) out of the Awadelkariem opinion. (3)

The circumstances of this case are substantially the same as those presented in English. The trial court never intended to grant appellant's motion for new trial; indeed, for the reasons stated in English, it could be argued that the motion was never actually granted. Instead, it is apparent from the record that the trial court inadvertently signed the May 9 new trial order believing that it was signing an order granting defense counsel's motion to withdraw. We hold that because the May 9 order was signed as a result of clerical error rather than judicial error, the trial court was authorized to set it aside even after the time for acting on the motion for new trial had expired. See State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (stating that trial court may use nunc pro tunc procedure to correct clerical error in order even after expiration of its plenary power).

The point of error is overruled, and the judgment of conviction is affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: January 17, 2008
Publish

1. See Awadelkariem v. State, No. 05-95-00779-CR, 1997 Tex. App. LEXIS 1754, at *10-11 (Tex. App.--Dallas Apr. 4, 1997) (not designated for publication).
2. The court is using the term "judgment" synonymously with the term "sentence." Per Texas Rule of Appellate Procedure 21.8, the time limit begins to run when sentence is imposed or suspended in open court.
3. Had the court of criminal appeals intended a bright-line, seventy-five day cut-off for the trial court's power to revisit an order granting a new trial, there would have been no need to mention the "progeny" of Matthews, i.e. English and following cases. The court would simply have stated that, after the expiration of the seventy-five day period, the rule set out in Matthews controlled. While such a rule of absolute finality is arguably viable, it does not appear to be the rule that the court adopted.

AFFIRMED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)

Craig Jerry Stepan v. The State of Texas--Appeal from 27th District Court of Bell County

Statute of Limitations Defense Was Waived By Failure to Plead It

Winkle v. Vallejo (Tex.App.- Austin, July 10, 2007)(Patterson)(op. on r'hrg)(restricted appeal, default judgment, statute of limitations defense)
AFFIRMED ON REHEARING: Opinion by Justice Patterson
Before Justices Patterson, Pemberton and Waldrop

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 04-1104-C277, HONORABLE KEN ANDERSON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N BY PATTERSON

Upon consideration of appellant's motion for rehearing, we deny the motion; however, we withdraw our opinion and judgment of June 12, 2007, and substitute the following.

This is a restricted appeal from the trial court's entry of a default judgment in favor of appellees Blanca Vallejo and Juan R. Vallejo. Barry S. Winkle appeals, contending that the lawsuit was barred by the statute of limitations and that the trial court abused its discretion in holding the trial four days earlier than the date on which the trial was noticed. For the reasons that follow, we affirm the judgment.

A restricted appeal is available to a party who did not participate, either in person or through counsel, in a proceeding that resulted in a judgment against the party. Tex. R. App. P. 30. It constitutes a direct attack on a default judgment. Id.; General Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991).

A party filing a restricted appeal must demonstrate that (1) he appealed within six months after the judgment was rendered, (2) he was a party to the suit, (3) he did not participate in the actual trial of the case, and (4) error appears on the face of the record. See Tex. R. App. P. 30; Quaestor Invs., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999). The face of the record includes all papers on file in the appeal, including the clerk's record and any reporter's record. DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991). Otherwise, a restricted appeal affords an appellant the same scope of review as an ordinary appeal. Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).


In 1999, the Vallejos offered their home for sale after they fell behind in paying their property taxes. In exchange for the Vallejos placing their home in trust with Bentley Capital LLC, Winkle, a licensed real estate agent, offered to pay their back taxes and mortgage payments, rent the house for two years, and then sell the house. Winkle immediately began renting the home to James and Leah Benton, but convinced them he was selling the home. (1) When the Vallejos attempted to buy another home in 2003, they discovered that the mortgage on their former home was still in their name and that Winkle had ceased to make the mortgage payments as agreed.

The mortgage company eventually foreclosed on their home.


The Vallejos sued Winkle for deceptive trade practices, fraud, and breach of contract. Citation was served on Winkle in state prison on January 20, 2005. By his answer, February 10, 2005, Winkle sought the appointment of an attorney or, in the alternative, a continuance. Trial was scheduled for September 26, 2005. Winkle was served with notice of the trial date on August 2, 2005. A trial was held on September 26, 2005. Winkle did not attend or participate in the trial. The trial court rendered judgment in favor of the Vallejos. This appeal followed.


Winkle first asserts that the four-year statute of limitations for the conveyance of real estate and fraud or the two-year statute of limitations for deceptive trade practices bars the Vallejos' lawsuit because they did not file the lawsuit until November 2004. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(1), (4) (West 2002) (conveyance of real estate and fraud); Tex. Bus. & Com. Code Ann. § 17.565 (West 2002) (deceptive trade practices). Limitations, however, is an affirmative defense that is waived if not pleaded. G.R.A.V.I.T.Y. Enters. v. Reece Supply Co., 177 S.W.3d 537, 544 (Tex. App.--Dallas 2005, no pet.); see Tex. R. Civ. P. 94 (listing statute of limitations as affirmative defense that party "shall set forth affirmatively"); Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.--Houston [14th Dist.] 2003, no pet.) ("A party waives the affirmative defense of statute of limitations if it is not pleaded or tried by consent.").

Here, Winkle did not plead a limitations defense at any point in the proceedings. Accordingly, we conclude that Winkle has waived any limitations defense, and the trial court did not err in entering a default judgment. See Reece Supply Co., 177 S.W.3d at 544 (holding that limitations defense was waived because, once party's pleading was struck, "it had no pleading asserting the affirmative defense of limitations"); Phifer v. Nacogdoches County Cent. Appraisal Dist., 45 S.W.3d 159, 173 (Tex. App.--Tyler 2000, pet. denied) (rejecting appellant's argument that trial court erred in allowing appellee to recover on claim that was barred by statute of limitations, since appellant had failed to plead limitations defense). We overrule Winkle's first issue.


In his second issue, Winkle complains that the trial occurred on September 22, four days earlier than the notice date of September 26, 2005. Winkle contends that the trial court abused its discretion in changing the date of the hearing without informing Winkle. The original judgment was signed on September 26, 2005. The reporter's record reflects that the hearing occurred on September 26; the docket sheet shows that the hearing occurred on September 26.

Any confusion as to the date of the hearing appears to arise from a handwritten entry on the original judgment that a hearing was held on September 22. Winkle appears to attribute this error to deceit on the part of the Vallejos' counsel. This error appears to be a clerical error; there is no showing that any proceeding occurred on September 22 or any date other than the date for which the trial was properly noticed. The record does not reflect that the trial judge abused his discretion. We overrule Winkle's second issue.


Having overruled Winkle's issues on appeal, we affirm the trial court's judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed on Motion for Rehearing
Filed: July 10, 2007

1. The Bentons also sued Winkle. See Winkle v. Benton, No. 03-05-00684-CV, 2006 Tex. App. LEXIS 8450 (Tex. App.--Austin 2006, no pet.) (mem. op.).

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Case cite and link to docket: Winkle v. Vallejo, No. (Tex.App.- Austin, Jul. 10, 2007)(Patterson)(opinion on motion for rehearing)
Full case style: Barry S. Winkle v. Blanca Vallejo and Juan R. Vallejo

Appeal from 277th District Court of Williamson County