
    Raymond DEROUEN, Plaintiff-Appellant, v. QUINTANA PETROLEUM, Defendant-Appellee.
    No. 92-984.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 1993.
    Miles Edward Tilly, Lafayette, for Raymond Derouen.
    Craig Marks, Lafayette, for Quintana Petroleum Corp., et al.
    Before DOMENGEAUX, C.J., and YELVERTON and SAUNDERS, JJ.
   YELVERTON, Judge.

This appeal arises from an amending judgment correcting the name of a defendant dismissed by summary judgment. We affirm.

Raymond and Tammy Derouen filed a petition for damages against three named defendants: Quintana Petroleum (U.S.), Inc., Quintana Petroleum Corporation, and Quintana Production Company. One of the defendants, Quintana Petroleum Corporation, filed a motion for summary judgment claiming that it was Raymond’s employer and that there was no genuine issue of material fact as to its immunity from tort liability.

After a hearing, the trial court granted the motion. However, the trial judge got confused over the similarity of names. In its reasons for judgment the trial court referred to the defendant once as Quintana Petroleum (USA), Inc., and another time as Quintana Petroleum Corporation (USA), Inc. The court then signed a judgment dismissing the claims against “Quintana Petroleum (USA), Inc.” on September 20, 1991.

The Derouens took a devolutive appeal but dismissed the appeal on March 20, 1992. Thereafter, in April 1992, Quintana Petroleum Corporation filed a motion to amend the judgment to get the correct party, Quintana Petroleum Corporation, named in the judgment of dismissal. The Derouens then filed an amending petition in their suit naming only Quintana Petroleum Corporation and Quintana Production Company.

A hearing on the motion to amend the judgment was held on June 22, 1992. An amended judgment dismissing all claims against Quintana Petroleum Corporation was signed on July 17, 1992. It is from this judgment that the Derouens have appealed claiming that the trial court could not amend the judgment because it was an alteration of substance.

La.C.C.P. art. 1951 states that a final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party to alter the phraseology of the judgment, but not the substance.

The definition of “substance” in Black’s Law Dictionary, 4th Ed.Rev. is “Essence; the material or essential part of a thing, as distinguished from ‘form’.”

In its reasons for judgment the trial judge said:

There is no question as to the identity of the mover in summary judgment in the instant case. Both parties correctly identified mover as Quintana Petroleum Corporation in their memoranda relating to the motion. The court finds that changing an incorrect designation of a corporate entity in a judgment when it is obvious that only one designation of that entity is at issue is not a substantive change. Where only one designated entity files a motion, and the court designates the incorrect entity, it is similar to a spelling error. In such a case, the connection between the moving party and the defendant in judgment is very clear, and there can be no mistake as to the identity of the party to which the motion and resulting judgment pertain.

The parties and the court all participated in the oversight. With three Quintana defendants, it was easy to mix them up. There was never any question about which one filed the motion for summary judgment, or which one was entitled to be dismissed when the motion was granted. What happened in the September 20, 1991 judgment was a misnomer. Moreover, the wrong-named person was not a party to the lawsuit. The party named in that judgment was Quintana Petroleum (USA), Inc. There was a Quintana Petroleum (U.S.), Inc., in the lawsuit but not a Quintana Petroleum (USA), Inc. Therefore, the judgment meant nothing. It decided no issue before the court. It was technically no judgment at all, having been rendered against a non-party. This being the case, the judgment signed on July 17, 1992, dismissing Quintana Petroleum Corporation, was the only valid judgment rendered on the motion for summary judgment. It was not an alteration of substance.

We cite Town of Mandeville v. Paquette, 153 La. 33, 95 So. 391 (La.1923) to support us. Although the case is old, the law has not changed. See La.C.C.P. art. 1951 and Official Révision Comments. In Paquette the judgment inadvertently called the defendant the “American Bonding Company”. The American Bonding Company was not a party to the suit. The American Surety Company of New York was the party. Before the judgment was signed, the trial court corrected the error. On appeal the Supreme Court affirmed saying, “[i]f the judge had not made the correction, we would make it now.”

The judgment is affirmed at appellant’s costs.

AFFIRMED.

SAUNDERS, J., dissents and assigns reasons.

SAUNDERS, Judge,

Dissenting.

I respectfully dissent. I disagree with the majority’s decision to allow the substitution of a defendant’s name in a final judgment by motion to amend.

LSA-C.C.P. art. 1951, states:
A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraselogy [sic] of the judgment, but not the substance; or
(2) To correct errors in calculation.

It is well settled in the jurisprudence that the changing of the name of a party cast in judgment is a change of substance and not phraseology. See Mitchell v. Zeringue, 497 So.2d 19 (La.App. 5th Cir.1986); Levy v. Stelly, 230 So.2d 774 (La.App. 4th Cir.1970).

After the defendant presented the judge with an erroneously drafted judgment for signature, which was, in turn, signed by the trial court, the defendant had three options. The defendant could have moved for a new trial, filed a timely appeal or possibly, instituted a separate action for nullity of judgment. A trial court may not alter the substance of the judgment after the time for appeal has elapsed without an appeal having been taken. The Second Circuit, in Gulfco Inv. Group, Inc. v. Jones, 577 So.2d 775 (La.App. 2d Cir.1991), noted the remedies available to a party aggrieved by an error of substance found in a final judgment at page 777, as follows:

Pursuant to Art. 1951, a final judgment may be amended by the trial court where the amendment takes nothing from or adds nothing to the original judgment. However, as a general rule, a final judgment is not subject to substantive amendment on the motion of the trial judge or of any party. In such event, the proper recourse is a timely application for new trial or a timely appeal. (Citations omitted.)
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While it may be argued that a harsh result might obtain in a case such as the instant one as a result of a clerical breakdown, the underlying purpose of the rule is to allow a signed final judgment to take precedence over substantive misstatements because a final judgment is usually prepared with care, may be revised before it is signed, and the aggrieved party has recourse to a timely application for a new trial or timely appeal.

Defendant’s argument that the error is simply a spelling or typographical error would be more palatable if the proper defendant to be named was “Quintana Petroleum (U.S.), Inc.” and the judgment had merely erroneously named this defendant (Quintana Petroleum (U.S.), Inc.) as “Quin-tana Petroleum (USA), Inc.” In fact, the proper defendant to be named was “Quin-tana Petroleum Corporation” and the naming of “Quintana Petroleum (USA), Inc.,” in the judgment clearly substituted one party for another. While it is true that the appellate court may correct a mere clerical error, we must proceed with extreme caution when substituting a named party in a final judgment.

As stated by the First Circuit in Creel v. Bogalusa Com. Medical Center, 580 So.2d 551, 552 (La.App. 1st Cir.), writ denied, 585 So.2d 567 (La.1991):

Substantive amendments to judgment can be made only by timely application for new trial, by action for nullity, or by timely appeal. Hurst v. Ricard, 558 So.2d 1269 (La.App. 1st Cir.), writ denied, 559 So.2d 1378 (La.1990). An amendment which alters the substance of a judgment and is made without granting a new trial has been held to be invalid and not within the authority granted by La.C.C.P. art. 1951, ...

As such, I find that the trial court altered the substance of the final judgment when it permitted defendant, Quintana Petroleum Corporation, to substitute itself for Quintana Petroleum (USA), Inc. by motion to amend and would reverse the judgment of the trial court.

For the foregoing reasons, I respectfully dissent. 
      
      . [In the trial court’s oral or written reasons for judgment.]
     
      
      . See Wright v. Jefferson Roofing, Inc., 590 So.2d 687 (La.App. 3d Cir.1991).
     