                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 ANN D. GARDNER AND
 JANE LEE DAVIS,                                 §                No. 08-09-00292-CV

                        Appellants,              §                    Appeal from

 v.                                              §                 143rd District Court

 THE ESTATE OF HERBERT C.                        §               of Reeves County, Texas
 TRADER AND 7T PROPERTY
 MANAGEMENT,                                     §               (TC # 08-0319037-CVR)

                        Appellees.               §


                                           OPINION

       This appeal arises from an action brought pursuant to Texas Property Code § 29.001.

Appellants Ann D. Gardner and Jane Lee Davis appeal the trial court’s judgment in favor of

Appellees, the Estate of Herbert C. Trader and 7T Property Management. We reverse and render

judgment denying Appellees’ petition for a forced sale of Appellants’ property.

                                      FACTUAL SUMMARY

       Appellees filed suit against Appellants pursuant to Chapter 29 of the Texas Property Code

which permits a party to seek the forced sale of an owner’s interest in certain real property as

reimbursement for property taxes paid by a co-owner on the owner’s behalf. TEX .PROP .CODE ANN .

§ 29.001-.004 (Vernon 2000 & Vernon Supp. 2010). The parties agreed to submit the case to the

trial court on stipulated facts because the facts were undisputed and the case turned on statutory

interpretation. The parties stipulated to the following facts:

       1. Appellees and Appellants are the co-owners of undivided interests in real property
       described as AB2183, Blocks 54 and 55, Section 10, T&P, E/2, Reeves County,
       Texas, containing 320 acres.

       2. Appellants each own a 1/16 interest in the property, received by inheritance.
       Appellees received their interest through inheritance.

       3. Appellees have timely paid ad valorem taxes on Appellants’ interest in the above
       stated real property from 1994 to 2007 and made timely demand on Appellants for
       reimbursement of same before filing suit.

       4. Appellees paid $223.26 in ad valorem taxes for each Appellant in the years 1994-
       2007.

       5. The suit was filed on March 11, 2008, pursuant to Texas Property Code § 29.004.
       Appellees request that the subject property be divested and transferred to them.

       6. After suit was filed and Appellants were served with citation, Appellants, tendered
       payment of $1,000 into the registry of the trial court.

The trial court entered judgment in favor of Appellees, erroneously reciting that Appellees had met

the statutory elements of Section 29.003 of the Tax Code rather than Section 29.003 of the Property

Code. Appellants filed a timely motion for new trial on the following grounds:

       1. The trial court erred in ruling that Appellees had met the statutory elements of Tax
       Code § 29.003 when the applicable statute is Texas Property Code § 29.003.

       2. The trial court erred by failing to rule that the Appellants’ tender of $1,000 into
       the registry of the court precluded Appellees from prevailing pursuant to Texas
       Property Code § 29.003(3) which required the Appellees to prove at the hearing that
       it had not been paid more than 1/2 of the amount of taxes owed.

       3. The court erred by failing to rule that equity prohibited a forfeiture of Appellants’
       interest to Appellees because Appellees made an excessive demand prior to filing
       suit.

The trial court did not rule on the motion for new trial, but the court issued a judgment nunc pro tunc

correcting the statutory citation to Section 29.003 of the Texas Property Code. Appellants filed

notice of appeal.

                                         JURISDICTION

       Before reaching the merits of Appellant’s arguments on appeal, we must first resolve a
jurisdictional issue raised by Appellees involving the timeliness of Appellants’ notice of appeal. The

trial court signed the original judgment on May 29, 2009. On June 25, 2009, Appellants timely filed

a motion for new trial. See TEX .R.CIV .P. 329b(a)(requiring motion for new trial to be filed prior to

or within thirty days after the judgment or other order complained of is signed). Because the motion

for new trial sought a substantive change in the judgment, it extended both the time for filing the

notice of appeal and the trial court’s plenary power to grant a new trial, or to vacate, modify, correct,

or reform the judgment. See TEX .R.APP .P. 26.1(a)(1); TEX .R.CIV .P. 329b(e); Lane Bank Equipment

Co. v. Smith Southern Equipment, Inc., 10 S.W.3d 308, 313 (Tex. 2000)(holding that only a motion

seeking a substantive change in a judgment will extend the appellate deadlines and the trial court’s

plenary power). The trial court’s plenary power to grant a new trial or to vacate, modify, correct, or

reform the judgment was extended to thirty days after the motion for new trial was overruled by a

written order or by operation of law, whichever occurred first. See TEX .R.CIV .P. 329b(e).

Appellants’ notice of appeal was due to be filed on August 27, 2009. See TEX .R.APP .P. 26.1(a)(1).

        In the absence of a ruling, the motion for new trial would have been overruled by operation

of law on August 13, 2009. The trial court did not rule on the motion, but on July 31, 2009, the

judge signed a nunc pro tunc judgment correcting the statute recited in the judgment from Section

29.003 of the Tax Code to Section 29.003 of the Property Code. Appellants filed notice of appeal

on October 29, 2009.

        Appellees argue that the trial court’s correction of the statutory citation in the nunc pro tunc

judgment did not restart the appellate timetable because it corrected a clerical error. To be clerical

in nature, the error must be one that is not the result of judicial reasoning, evidence, or determination.

Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986). The trial court has plenary power to correct a

clerical error made in entering final judgment, but it cannot correct a judicial error made in rendering
a final judgment. Jenkins v. Jenkins, 16 S.W.3d 473, 482 (Tex.App.--El Paso 2000, no pet.), citing

Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). When deciding whether a correction is a

judicial or a clerical error, we look to the judgment actually rendered, not the judgment that should

or might have been rendered. Jenkins, 16 S.W.3d at 482. The court can only correct the entry of a

final written judgment that incorrectly states the judgment actually rendered. Id. Simply stated, even

if the court renders incorrectly, it cannot alter a written judgment which precisely reflects the

incorrect rendition. Id. We conclude that the trial court’s misrecital of the applicable statutory

authority in its May 29, 2009 judgment nunc pro tunc is a clerical error. See Koch, 702 S.W.2d at

585.

        Rule 316 of the Texas Rules of Civil Procedure permits a trial court to correct clerical

mistakes in a judgment after notice has been provided to the interested parties. TEX .R.CIV .P. 316;

see Jenkins v. Jenkins, 16 S.W.3d 473, 476 (Tex.App.--El Paso 2000, no pet.). Rule 329b(h)

provides that “[i]f a judgment is modified, corrected or reformed in any respect ” the appellate

timetable runs from the date of the new judgment. TEX .R.CIV .P. 329b(h)(emphasis added); Lane

Bank Equipment Co., 10 S.W.3d at 313. Any change to a judgment made by the trial court while it

retains plenary jurisdiction will restart the appellate timetable under Rule 329b(h). Lane Bank, 10

S.W.3d at 313.

        Since Appellants timely filed a motion for new trial seeking a substantive change in the

judgment, the court signed the judgment nunc pro tunc during the court’s plenary power. See

TEX .R.CIV .P. 329b(e); Lane Bank, 10 S.W.3d at 313 (holding that any change to a judgment made

by the trial court while it retains plenary jurisdiction will restart the appellate timetable, but only a

motion seeking a substantive change will extend the appellate deadlines and the trial court’s plenary

power). The correction of the clerical error during the period of plenary power restarted the appellate
timetables. See TEX .R.CIV .P. 329b(h). Appellants’ motion for new trial effectively assailed the

judgment nunc pro tunc and extended the due date of the notice of appeal to October 29, 2009.

Appellants timely filed their notice of appeal on that date. We therefore have jurisdiction of this

appeal.

                              POST-PETITION REIMBURSEMENT

          In two related issues, Appellants challenge the trial court’s determination that they had not

reimbursed the petitioner more than half of the amount of money Appellees paid on behalf of

Appellants for their share of ad valorem taxes imposed on the property. In their first issue,

Appellants contend that their tender of $1,000 into the registry of the court precludes a finding under

Section 29.003(3) that they had not reimbursed Appellees for more than one-half of the taxes owed.

In Issue Two, they assert that Section 29.003(3) does not require reimbursement prior to filing suit

but only prior to a hearing on the petition. Appellees, on the other hand, urge that Section 29.003(3)

only requires a showing that Appellants did not reimburse them for more than half of the taxes paid

before suit was filed. Although not expressly stated, we construe Appellants’ arguments as

challenging the sufficiency of the evidence to support the court’s finding that Appellees had carried

their burden of proof with respect to Section 29.003(3). The issues presented first require that we

construe Section 29.003.

                                    Rules of Statutory Construction

          When construing a statute, we begin with its language. State v. Shumake, 199 S.W.3d 279,

284 (Tex. 2006). Our primary objective is to determine the Legislature’s intent which, when

possible, we discern from the plain meaning of the words chosen. Id.; City of San Antonio v. City

of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). If the statute is clear and unambiguous, we must apply

its words according to their common meaning without resort to rules of construction or extrinsic
aids. Shumake, 199 S.W.3d at 284; Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996

S.W.2d 864, 865-66 (Tex. 1999). We may consider other matters in ascertaining legislative intent,

including the objective of the law, its history, and the consequences of a particular construction. See

TEX .GOV ’T CODE ANN . § 311.023(1), (3), (5)(Vernon 2005); Shumake, 199 S.W.3d at 284. It is a

well-settled rule of statutory construction that every word of a statute must be presumed to have been

used for a purpose, and those excluded must be presumed to have been excluded for a purpose. See

Quick v. City of Austin, 7 S.W.3d 109, 123 (Tex. 1998). Because statutory construction is a question

of law, we review it de novo. Shumake, 199 S.W.3d at 284.

                                  Chapter 29 of the Property Code

        Chapter 29 of the Property Code applies only to real property that is not exempt from forced

sale under the constitution or laws of Texas and is received by a person as a result of death of another

person by inheritance, under a will, by a joint tenancy with a right of survivorship, or by any other

survivorship agreement in which the interest of the decedent passes to a surviving beneficiary other

than an agreement between spouses for community property with a right of survivorship.

TEX .PROP .CODE ANN . § 29.001. A person who owns an undivided interest in such real property may

file a petition in district court for an order to require another owner of an undivided interest in that

property to sell the other owner’s interest in the property to the person if:

        (1) the person has paid the other owner’s share of ad valorem taxes imposed on the
        property for any three years in a five-year period . . . ; and

        (2) the other owner has not reimbursed the person for more than half of the total
        amount paid by the person for the taxes on the owner’s behalf.

TEX .PROP .CODE ANN . § 29.002(a)(1), (2). At a hearing on a petition filed under Section 29.002, the

petitioner must prove by clear and convincing evidence that:

        (1) the petitioner has paid the defendant’s share of ad valorem taxes imposed
       on the property that is the subject of the petition for any three years in a five-year
       period . . . ;

       (2) before the date on which the petition was filed the petitioner made a demand that
       the defendant reimburse the petitioner for the amount of the defendant’s share of ad
       valorem taxes imposed on the property paid by the petitioner; and

       (3) the defendant has not reimbursed the petitioner more than half of the amount of
       money the petitioner paid on the defendant’s behalf for the defendant’s share of ad
       valorem taxes imposed on the property.

TEX .PROP .CODE ANN . 29.003.

       Appellees assert that Section 29.003(3) only requires a showing that the defendant did not

reimburse the petitioner before suit was filed, and the defendant cannot avoid a forced sale of

property by reimbursing the petitioner after the suit is filed. Section 29.003(2) includes the language

“before the date on which the petition was filed,” but Section 29.003(3) does not. We find nothing

in the language of Section 29.003(3) evidencing an intent on the part of the Legislature to permit a

forced sale of property when the defendant reimburses the petitioner after the suit is filed. The

Legislature could have easily included the phrase “before the date on which the petition was filed”

in Section 29.003(3). We are required to presume that the Legislature included these words in

Section 29.003(2) and excluded them from Section 29.003(3) for a purpose. See Quick, 7 S.W.3d

at 123. Accordingly, we construe Section 29.003(3) as requiring the petitioner to prove by clear and

convincing evidence that the defendant had not reimbursed the petitioner more than half of the ad

valorem taxes paid by the petitioner at any point before the hearing on the petition.

                                          Legal Sufficiency

       Having determined what the statute requires, we turn to consider the legal sufficiency of the

evidence supporting the trial court’s finding on Section 29.003(3). In conducting a legal-sufficiency

review of a fact finding made on clear and convincing evidence, we employ an elevated standard of
review. Southwestern Bell Telephone Company v. Garza, 164 S.W.3d 607, 627 (Tex. 2004). Under

this review, we look at all the evidence in the light most favorable to the finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was

true. Id. If we determine after reviewing the evidence that no reasonable fact finder could form a

firm belief or conviction that the matter that must be proven is true, then we must conclude that the

evidence is legally insufficient. Id.

        Appellees’ petition alleged that they had paid the total amount of $999.30, including taxes

and interest, on behalf of each Appellant for ad valorem taxes from 1994-2007. See TEX .PROP .CODE

ANN . § 29.002(b)(4)(requiring petition to contain the total amount paid by the petitioner for the

defendant’s share of ad valorem taxes imposed on the property). In contrast with the amount alleged

in the petition to have been paid, the parties stipulated that Appellees had paid $223.26 in ad valorem

taxes for each Appellant in the years 1994-2007.1 The parties also stipulated that Appellees had

made demand on Appellants for reimbursement before filing suit, but the stipulation does not include

the amount Appellees demanded that Appellants pay. It is undisputed that Appellants did not

reimburse Appellees prior to the suit being filed, but Appellants tendered $1,000 into the registry of

the court after the suit was filed as reimbursement for the taxes paid by Appellees. In the written

tender of payment found in the clerk’s record, Appellants expressed their confusion over the exact

amount of money claimed by Appellees to be owed because it was unclear whether Appellees had

paid $999.30 for each of the Appellants or whether that was the total amount paid by Appellees on

behalf of both defendants. Nevertheless, Appellants tendered the sum of $1,000 to be held by the

district clerk on behalf of the Appellees representing payment and reimbursement for taxes paid on

Appellants’ behalf. Further, Appellants specifically requested in their tender of payment that the trial

       1
           The record does not reflect the reason for the discrepancy between the amount pleaded and the stipulation.
court accept the tender of $1,000 as full or partial payment of the amount owed to Appellees. As

it turned out, Appellants tendered more than twice the amount owed Appellees for reimbursement.

       Appellees argue that the tender of funds into the court’s registry does not constitute

reimbursement because it is “not an unequivocal payment” to them and they have not actually

received the money. They do not cite any authority in support of their argument. Black’s Law

Dictionary defines “tender” as “[a] valid and sufficient offer of performance; specif., an

unconditional offer of money or performance to satisfy a debt or obligation . . . .” BLACK’S LAW

DICTIONARY 1606 (9th ed. 2009); see Baucum v. Great American Insurance Company of New York,

370 S.W.2d 863 (Tex. 1963)(holding that a tender, to be effective, must be legally valid and

unconditional). At least one appellate court has held that a payment into the registry of the court

under a reservation of rights or a conditional tender does not constitute “payment.” See TPS Freight

Distributors, Inc. v. Texas Commerce Bank-Dallas, 788 S.W.2d 456, 461 (Tex.App.--Fort Worth

1990, writ denied). It follows that an unconditional tender of payment into the court’s registry can

constitute payment of an obligation. Appellants’ tender of money into the court’s registry was

unconditional and made to satisfy the amount owed to Appellees. As such, it constituted payment

of the reimbursement amount owed by them to Appellees. Accordingly, we find that a reasonable

trier of fact could not have formed a firm belief or conviction that Appellants had not reimbursed

Appellees more than half of the amount paid by them for Appellants’ share of ad valorem taxes on

the property. Issues One and Two are sustained. Because our disposition of these issues resolves

the case, we will not address the remaining issues. We reverse the judgment of the trial court and

render judgment denying Appellees’ petition for a forced sale of Appellants’ property.



October 27, 2010
                                              ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.
