Opinion issued December 19, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas


                             NO. 01-12-01072-CV


                      EMELDA AKUKORO, Appellant
                                      V.
                       KERRY AKUKORO, Appellee


                   On Appeal from the 245th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2011-62330


                        MEMORANDUM OPINION

      Emelda Akukoro appeals the trial court’s final decree of divorce.     She

challenges (1) the trial court’s grant of Kerry Akukoro’s claims for equitable

reimbursement, (2) the trial court’s failure to offset those claims with her own
claims for reimbursement, (3) the trial court’s failure to file findings of fact and

conclusions of law, and (4) the trial court’s grant of Kerry’s motion for nunc pro

tunc judgment. We affirm.

                                    Background

Pre-trial events

      In October 2011, Kerry filed for divorce from Emelda. The trial court

entered a temporary restraining order and an order setting a hearing for temporary

orders.   Among other things, the temporary restraining order prohibited both

parties from “[s]elling, transferring, assigning, mortgaging, encumbering, or in any

other manner alienating any of the property of Petitioner or Respondent, whether

personalty or realty, and whether separate or community, except as specifically

authorized by this order,” and “[m]aking withdrawals from any checking or

savings account in any financial institution for any purpose, except as specifically

authorized by this order.” It provided that each party was authorized “[t]o make

expenditures and incur indebtedness for reasonable and necessary living expenses

for food, clothing, shelter, transportation, and medical care,” “[t]o make

expenditures and incur indebtedness for reasonable attorney’s fees and expenses in

connection with this suit,” [t]o make withdrawals from accounts in financial

institutions only for the purposes authorized by this order,” and “[t]o engage in acts

                                          2
reasonable and necessary to conduct [their] usual business and occupation.” In

November 2011, Emelda answered and filed a counter-petition for divorce.

      On December 19, 2011, the trial court signed partial agreed temporary

orders.   The orders appointed Kerry and Emelda Temporary Joint Managing

Conservators of their four children, and provided that Emelda would have the

exclusive right to designate the primary residence of the children. Emelda was

also awarded exclusive and private use and possession of the couple’s house while

the divorce case was pending. The orders directed Kerry to pay Emelda monthly

child support. The orders also provided that Kerry and Emelda would each receive

50% of any income from an investment business they co-owned, Genuine Export,

Inc., and made various provisions regarding the operation of a co-owned home

health business, Blessed Home Health Services, Inc. (“Blessed Home”).          The

orders contained the same prohibitions as the temporary restraining order regarding

disposing of property and making withdrawals from accounts.

      After entry of the temporary orders, the parties entered into three

agreements. The Mediated Settlement Agreement encompassed all issues related

to the care of the children. 1 The parties’ first Rule 11 agreement provided that




1
      This Mediated Settlement Agreement is not in the record.
                                          3
Kerry would pay Emelda $125,000 for her ownership interest in Blessed Home. 2

On July 23, 2012, the parties entered into a second Rule 11 agreement, in which

they agreed that (1) all real estate and the amounts in all bank accounts would be

divided 50/50, (2) each person would keep the vehicles that were held in their own

name, and (3) each person would keep the personal property in their possession.

This agreement specified the amounts in each bank account, and noted that a Bank

of America account ending in 1710 held in Emelda’s name contained $61,126 and

a Wells Fargo Account ending in 8513 held in Emelda’s name contained $20,572.

It also specified that these accounts had contained $107,466.06 and $59,681.14,

respectively, in November 2011, subsequent to the trial court’s entry of the

temporary restraining order. The agreement also specified that the trial would be

limited to proving up the divorce and to the “equitable reimbursement claims of

both parties.”

Trial

        Trial was held in October 2012. At trial, Kerry contended that his separate

estate had three bases for reimbursement. First, Kerry introduced evidence that, on

November 4, 2011, after the trial court had entered its temporary restraining order,


2
        This Rule 11 agreement is not in the record; however, the parties agree that both
        parties complied with its terms and there is no challenge to this agreement on
        appeal.
                                            4
the 1710 account contained $107,466.06 in community funds. As of February 6,

2012, the 1710 account contained only $61,126.          Second, Kerry introduced

evidence that, on November 30, 2011, the 8513 account contained $59,681.14 in

community funds. As of January 31, 2012, the 8513 account contained only

$20,572. Kerry contended that Emelda had wasted the difference—a total of

$85,449.20—because she could not show the withdrawals were for reasonable and

necessary living expenses. Kerry requested that he receive reimbursement of half

of the amount that Emelda withdrew from the 1710 account, $23,170, and half of

the amount that Emelda withdrew from the 8513 account, $19,470.

      Third, Kerry testified that he had paid $2,000 per month from January 2012

to October 2012 towards the mortgage on the couple’s house, which included

approximately $1,215 towards the monthly payment plus approximately $785

towards principal to catch up the arrearages in the account based on an agreement

with the bank. Kerry requested that he be reimbursed one half of the total amount

he paid towards the mortgage, $10,000.

       Kerry’s claims for reimbursement totaled $52,640. Kerry requested that

the trial court award him 100% of the interest in the house and 100% of his

retirement account, instead of the 50% of each of these as allocated in the July 23,

2012 Rule 11 agreement, in order to make this reimbursement. The parties had

                                         5
agreed in their second Rule 11 agreement that their equity in the home totaled

$56,000, and therefore Emelda’s 50% interest was worth roughly $28,000. The

after-tax value of 50% of Kerry’s retirement account was approximately $25,000.

Accordingly, these two items combined totaled approximately $53,000.

       Emelda testified that she received $8,000 to $10,000 per month in each of

November and December 2011 and January and February 2012 from Blessed

Home, and then received a lump sum of $125,000 when she sold her interest in the

business. She also testified that she received $2,000 per month in child support

from Kerry. She agreed that Kerry paid all of the expenses associated with their

house.

       Regarding her expenses, Emelda testified that she spent no more than $4,000

on family expenses per month. She testified that although she was awarded sole

possession of the couple’s house during the pendency of the case, she moved in

January 2012 to another location, where she prepaid $14,000 for a year’s worth of

rent. She also testified that she incurred $49,669 in legal expenses related to the

divorce prior to the date of trial.

       Emelda testified that she understood the withdrawal and spending

prohibitions in the temporary orders, but that she had used the $85,449.20

withdrawn from the 1710 and 8513 accounts between October 2011 and February

                                        6
2012 for her “business and family expenses.”            She testified that she used

approximately $46,000 that she withdrew from the 1710 account to buy a new

business and approximately $40,000 that she withdrew from the 8513 account for

“family expenses.”

      Emelda also testified that, although she agreed in the July 23, 2012 Rule 11

agreement to split the $61,126 in the 1710 account and the $20,572 contained in

the 8513 account equally with Kerry, she withdrew and spent that money. She

testified that at the time she entered into the agreement, she had already withdrawn

and spent the $61,126 in the 1710 account on her legal, business, and family

expenses. She testified that she purchased another business for $200,000 after

selling her interest in Blessed Home, using the $125,000 she received from the sale

of her interest in Blessed Home plus an additional $75,000.

      Emelda testified that she had claims to offset Kerry’s claims for

reimbursement. Specifically, Emelda testified that she gave Kerry money so that

he could buy a car, and he promised to pay her back that money. Kerry objected to

this testimony as not relevant, and the trial court sustained the objection.

      The trial court entered written findings on October 8, 2012. It found that

Emelda “spent, transferred, or otherwise removed” the $61,126 contained in the

1710 account and the $20,572 contained in the 8513 account that she had agreed in

                                           7
the July 23, 2012 Rule 11 agreement to split with Kerry 50/50, and that $40,849 of

these amounts were Kerry’s funds. The trial court also found that Kerry expended

$20,000 toward the payment of loans arising from the mortgage on the couple’s

house, and that Kerry’s equitable reimbursement claim for $10,000 based on these

payments should be granted. The trial court concluded that Emelda should be

awarded the 1710 and 8513 accounts, and Kerry should be awarded 100% of the

interest in the couple’s house and 100% of his retirement plan. It signed a final

decree of divorce on October 31, 2012.

Post-trial events

      On November 6, 2012, Emelda filed a request for findings of fact and

conclusions of law pursuant to Rule 296 of the Texas Rules of Civil Procedure.

The trial court annotated the request on December 3, 2012, indicating that the

request had been called to the court’s attention on November 28, 2012. The trial

court did not enter additional findings or conclusions based upon the request. On

December 5, 2012, Emelda filed a notice of past due findings of fact and

conclusions of law.

      On November 30, 2012, Kerry filed a “Motion for Judgment Nunc Pro Tunc

and Request for Hearing to Enter.” Kerry requested a judgment nunc pro tunc

because “[t]he judgment signed by the court contains a clerical error; specifically,

                                         8
it failed to accurately and consistently reflects [sic] the previously filed Mediated

Settlement agreement terms related to health insurance for said children.” The

October 31, 2012 decree required that Kerry pay for health insurance for the

children. The trial court granted the motion and signed a nunc pro tunc final

decree of divorce on January 16, 2013, which required that Emelda pay for health

insurance for the children.

                                     Discussion

      Emelda contends the trial court abused its discretion in concluding that she

wasted community assets and that Kerry was entitled to reimbursement. She also

contends that the trial court abused its discretion in sustaining Kerry’s objection to

Emelda’s testimony regarding her claims of offset. Further, she contends that the

judgment must be reversed because the trial court did not file findings of fact and

conclusions of law after she filed a timely request. Finally, she contends that the

trial court erred in granting Kerry’s motion for a nunc pro tunc judgment, because

the error in the judgment was a judicial error and not a clerical error. We address

these contentions in turn.




                                          9
A. Did the trial court err in concluding Kerry was entitled to equitable
   reimbursement?
      In her first issue, Emelda contends the trial court abused its discretion in

concluding that she wasted community assets and that Kerry was entitled to

equitable reimbursement.

      1. Standard of Review and Applicable Law

      We review a trial court’s division of marital property for an abuse of

discretion. Barras v. Barras, 396 S.W.3d 154, 164 (Tex. App.—Houston [14th

Dist.] 2013, pet. denied). The trial court has broad discretion when dividing the

marital estate at divorce. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). “To

disturb a trial court’s division of property, a party must show that the court clearly

abused its discretion by a division or an order that is manifestly unjust or unfair.”

Barras, 396 S.W.3d at 164. A trial court does not abuse its discretion if there is

some evidence of a substantive and probative nature to support the decision. Id. A

trial court abuses its discretion if it acted unreasonably or arbitrarily, or without

reference to any guiding rules or principles. Id.

      Reimbursement is an equitable right that arises when the funds or assets of

one estate are used to benefit and enhance another estate without itself receiving

some benefit. Id. at 173. In a claim for reimbursement, the trial court shall

determine the rights of the parties and apply equitable principles to determine
                                         10
whether to recognize the claim after considering the parties’ relative circumstances

and, in appropriate circumstances, order a division of the claim in a just and right

manner. TEX. FAM. CODE ANN. § 7.007 (West Supp. 2013); Barras, 396 S.W.3d at

173. Because a trial court resolves claims for reimbursement under equitable

principles, claims for reimbursement may be offset against each other where

appropriate. TEX. FAM. CODE ANN. § 3.402(b) (West Supp. 2013); Barras, 396

S.W.3d at 173. The party claiming the right of reimbursement has the burden of

pleading and proving that the expenditures were made and that they are

reimbursable.   Barras, 396 S.W.3d at 173–74.         “A trial court’s discretion in

evaluating a claim for reimbursement is equally as broad as that discretion

exercised by a trial court in making a just and right division of the community

estate.” Id. at 174 (citing Penick v. Penick, 783 S.W.2d 194, 198 (Tex. 1988)).

      The trial court may also consider whether a party wasted community assets

in determining a just and right division and whether a party is entitled to

reimbursement. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). “A

fiduciary duty exists between a husband and a wife as to the community property

controlled by each spouse.” Zieba v. Martin, 928 S.W.2d 782, 789 (Tex. App.—

Houston [14th Dist.] 1996, no pet.) (op. on reh’g). “A presumption of ‘constructive

fraud,’ i.e., waste, arises when one spouse disposes of the other spouse’s interest in

                                         11
community property without the other’s knowledge or consent.” Puntarelli v.

Peterson, 405 S.W.3d 131, 138–39 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

No dishonesty of purpose or intent to deceive must be established, because proof

of subjective intent is required only to show actual fraud on the community, not

constructive fraud on the community. Id. at 139. Once the presumption arises, the

burden of proof shifts to the disposing spouse to prove the fairness of the

disposition of the other spouse’s one-half community ownership. Id.

      2. Analysis

      Emelda contends that the trial court erred in awarding Kerry an equitable

reimbursement for three reasons.     First, Emelda contends she did not waste

community assets, because she spent the money in accounts 1710 and 8513 on

living expenses, business expenses, and attorney’s fees. Second, Emelda contends

that to prove waste, Kerry was required to prove the heightened culpability

standard of actual fraud, which he failed to do. Finally, Emelda contends the trial

court erred in calculating the equitable reimbursement and awarded Kerry more

than he was entitled to receive.




                                        12
              a. Did the trial court err in determining that Emelda “spent,
                 transferred, or otherwise removed” $40,849 of Kerry’s funds
                 from the 1710 and 8513 accounts?
      At trial, Emelda admitted that, although she had agreed in the July 23, 2012

Rule 11 agreement to split the $61,126 in the 1710 account and the $20,572 in the

8513 account with Kerry 50/50, she instead withdrew and spent this money. The

trial court found that Emelda “spent, transferred, or otherwise removed” these

amounts, and that $40,849 of these amounts were Kerry’s funds. Emelda contends

that this was not waste of community assets, because she spent the money on

family expenses, business expenses, and attorney’s fees. However, regardless of

her reasons for withdrawing these funds, Emelda agreed in the Rule 11 agreement

that Kerry would receive $40,849 from the funds in the 1710 and 8513 accounts.

But the record demonstrates that Emelda spent most, if not all, of this money

before she even entered into the Rule 11 agreement with Kerry and represented to

him that he would receive this money. Accordingly, we hold that the trial court did

not err in finding that Kerry was entitled to an equitable reimbursement of $40,849.

See Barras, 396 S.W.3d at 173–74 (emphasizing trial court’s broad discretion in

dividing community estate); Puntarelli, 405 S.W.3d at 138–39 (presumption of

waste arises when one spouse disposes of the other spouse’s interest in community

property without the other’s knowledge or consent).


                                        13
              b. Was Kerry required to prove the heightened culpability
                 standard of actual fraud in order to receive an equitable
                 reimbursement with respect to funds in the 1710 and 8513
                 accounts?
      Emelda contends that, in order to recover on his reimbursement claims

related to withdrawal of funds from the 1710 and 8513 accounts, Kerry was

required to prove the heightened culpability standard of actual fraud. We disagree.

“A presumption of ‘constructive fraud,’ i.e., waste, arises when one spouse

disposes of the other spouse’s interest in community property without the other’s

knowledge or consent.” Puntarelli, 405 S.W.3d at 138–39. Here, there is no

dispute that Emelda spent the $61,126 in the 1710 account and the $20,572 in the

8513 account, and yet, agreed in writing that Kerry should receive 50% of each of

these amounts. Further, it is undisputed that Kerry had no knowledge that Emelda

had disposed of these funds. In fact, the record reflects that Kerry did not learn

that these funds had been withdrawn from the accounts until Emelda admitted this

at trial. Because a presumption of waste arose based on the evidence that Emelda

had disposed of the $40,849 without Kerry’s knowledge, Kerry was not required to

establish that Emelda had dishonesty of purpose or intent to deceive in disposing of

these funds. Id. at 139. Accordingly, we reject Emelda’s contention that Kerry

was required to prove actual fraud in order to recover on his equitable

reimbursement claims regarding the 1710 and 8513 accounts. See id. at 138–39.
                                        14
                 c. Did the trial court err in its calculation of Kerry’s equitable
                    reimbursement claim?
         Emelda contends that the trial court erred in awarding Kerry 100% of the

interest in the couple’s house. The second Rule 11 agreement reflects that the

parties agreed that each would be awarded a 50% interest in the house. At trial,

when Kerry requested that the trial court award him 100% of the interest in the

house in order to give effect to his reimbursement request, Emelda did not object

on the basis of any purported miscalculation, nor did she argue that the Rule 11

agreement was unenforceable. Accordingly, Emelda has not preserved for our

review her contention that the trial court erred by miscalculating the value of

Kerry’s reimbursement claim or the value of the couple’s equity in the house. See

TEX. R. APP. P. 33.1(a) (prerequisite for presenting complaint on appeal is a record

showing complaint was timely made to trial court and ruling obtained).

         We conclude that the trial court did not err in entering judgment for Kerry

on his equitable reimbursement claims. Accordingly, we overrule Emelda’s first

issue.

B. Did the trial court err in excluding Emelda’s offset evidence?

         In her second issue, Emelda contends that the trial court abused its discretion

in sustaining Kerry’s objection to her testimony regarding her claims for offset.



                                           15
      1. Standard of Review and Applicable Law

      We review the trial court’s decision to exclude evidence for an abuse of

discretion. McBride v. McBride, 396 S.W.3d 724, 730 (Tex. App.—Houston [14th

Dist.] 2013, pet. denied). To preserve error concerning the exclusion of evidence,

the complaining party must actually offer the evidence and secure an adverse

ruling from the court. Sink v. Sink, 364 S.W.3d 340, 347 (Tex. App.—Dallas 2012,

no pet.) (citing Fletcher v. Minn. Min. & Mfg. Co., 57 S.W.3d 602, 606 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied)). While the reviewing court may

sometimes be able to discern from the record the general nature of the evidence

and the propriety of the trial court’s ruling, it cannot, without an offer of proof,

determine whether exclusion of the evidence was harmful.          Id.   Thus, when

evidence is excluded by the trial court, the proponent of the evidence must

preserve the evidence in the record in order to complain of the exclusion on appeal.

See Fletcher, 57 S.W.3d at 606; see also TEX. R. EVID. 103(a), (b). If the party

fails to make an offer of proof, it must introduce the excluded testimony into the

record by a formal bill of exception. See Southwest Country Enters., Inc. v. Lucky

Lady Oil Co., 991 S.W.2d 490, 494–95 (Tex. App.—Fort Worth 1999, pet.

denied). Failure to demonstrate the substance of the excluded evidence through an




                                        16
offer of proof or bill of exception results in waiver of any error in its exclusion.

See id. at 494.

      2. Analysis

      Emelda contends that she has several bases for offset, including claims

regarding two cars and a claim regarding a bank account, and that the trial court

abused its discretion in excluding her testimony regarding these claims.        The

following exchange occurred at trial:

      Emelda’s attorney: Did you ever give your husband money to buy a car?

      Emelda: Yes.

      Emelda’s attorney: And he promised to replace that.

      Emelda: Yes.

      Emelda’s attorney: Can you tell the Court approximately how much.

      Kerry’s attorney: Let me object to time on this and relevancy, Your Honor.

      The Court: Time frame, sir?

      Emelda’s attorney: That was in 2011?

      Emelda: Yes.

      The Court: Prior to the Rule 11 Agreement?

      Emelda’s attorney: Yes, Judge.

      The Court: Sustain the objection.

                                          17
This is the entirety of the testimony in the record related to Emelda’s claims for

offset. Emelda did not make an offer of proof or bill of exception regarding the

evidence she intended to introduce. Accordingly, we hold that she did not preserve

this complaint for review. See Sink, 364 S.W.3d at 347; Fletcher, 57 S.W.3d at

606; Southwest Country Enters., 991 S.W.2d at 494.

      We overrule Emelda’s second issue.

C. Was Emelda harmed by the trial court’s failure to file findings of fact and
   conclusions of law in response to her request?
      In her third issue, Emelda contends the trial court erred in failing to file

findings of fact and conclusions of law after she filed a timely request.

      1. Standard of Review and Applicable Law

      Under Texas Rule of Civil Procedure 296, when a party makes a proper and

timely request for findings of fact and conclusions of law and the trial court fails to

comply, harm is presumed unless the record affirmatively shows that the

requesting party was not harmed by their absence. TEX. R. CIV. P. 296; Watts v.

Oliver, 396 S.W.3d 124, 130 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(citing Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (per curiam)). Findings

of fact and conclusions of law must be requested within 20 days after judgment,

and if no findings and conclusions are filed, the requesting party must file a notice

of past due findings within 30 days of its original request. See TEX. R. CIV. P. 296,
                                          18
297. If the record shows that the failure to file findings of fact and conclusions of

law did not prevent the appellant from properly presenting their case to the

appellate court, error is not harmful. See Watts, 396 S.W.3d at 130 (citing Tenery,

932 S.W.2d at 30); Rumscheidt v. Rumscheidt, 362 S.W.3d 661, 665 (Tex. App.—

Houston [14th Dist.] 2011, no pet.).

      2. Analysis

      The trial court entered written findings following trial.          After the final

judgment was signed, Emelda timely requested findings of fact and conclusions of

law pursuant to Rule 296. See TEX. R. CIV. P. 296. She also timely filed a notice

of past due findings. See TEX. R. CIV. P. 297. However, the record shows that the

failure to file findings of fact and conclusions of law in response to her request did

not prevent Emelda from properly presenting her case on appeal, and therefore any

error is not harmful.3 See Watts, 396 S.W.3d at 130–31 (where party was able to

challenge grounds for adverse award, there was no harm in trial court’s failure to

3
      Emelda contends that harm should be presumed for three reasons: (1) the trial
      court found for Kerry on his reimbursement claim; (2) the trial court did not
      consider her claims for offset, “nor provide[] any explanation as to why it didn’t
      take them into account in the property division;” and (3) the appellate court should
      not consider “findings recited in the judgment.” But none of these is persuasive.
      First, the mere fact that Kerry prevailed on his reimbursement claim does not
      demonstrate harm. Next, with respect to Emelda’s offset claim, the trial court
      excluded Emelda’s evidence, as discussed in issue two, above, and therefore, there
      was no evidence to support it. Finally, Emelda’s claim that we cannot rely on the
      findings filed by the trial court is without merit, because the trial court properly
      recited them in a document other than the final judgment.
                                           19
file findings of fact and conclusions of law); see also Rumscheidt, 362 S.W.3d at

665–66. The trial court entered written findings on the salient issues on October

26, and there is no missing finding that prevented Emelda from presenting her

appeal to this Court. Accordingly, we conclude that Emelda was not harmed by the

trial court’s failure to file findings of fact and conclusions of law in response to her

request. See Tenery, 932 S.W.2d at 30; Watts, 396 S.W.3d at 130–31.

      We overrule Emelda’s third issue.

D. Did the trial court err in correcting the judgment?

      In her fourth issue, Emelda contends that the trial court erred in granting

Kerry’s motion for a nunc pro tunc judgment, because the error in the judgment

was a judicial error and not a clerical error. We do not need to determine whether

the error sought to be corrected was clerical or judicial, because Kerry’s motion

was filed within 30 days of the signing of the final judgment and sought to correct

the judgment.

      1. Applicable Law

      The trial court retains plenary power over a case for a minimum of thirty

days after signing a final judgment. TEX. R. CIV. P. 329b(d); Lane Bank Equip.

Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). The plenary power

of the court can be extended by timely filing, within 30 days of the judgment, an

                                          20
appropriate postjudgment motion, such as a motion for new trial or a motion to

modify, correct, or reform the judgment. See TEX. R. CIV. P. 329b(a), (e), (g);

Lane Bank, 10 S.W.3d at 310. If such a motion is filed and not determined within

75 days of the date of the judgment, the motion is overruled by operation of law.

TEX. R. CIV. P. 329b(c). However, in such a case, the trial court may still grant a

new trial, vacate, modify, correct, or reform the judgment until 30 days after the

expiration of the 75 day period. See TEX. R. CIV. P. 329b(e), (g).

      2. Analysis

      In his “Motion for Judgment Nunc Pro Tunc and Request for Hearing to

Enter,” Kerry averred that the final decree of divorce signed by the trial court on

October 31, 2012 incorrectly incorporated the terms of the parties’ MSA with

respect to their children’s health insurance. Emelda does not contend that the

October 31 decree correctly reflected the terms of the parties’ MSA, nor does she

contend that the MSA was not enforceable; instead, she contends that, because the

final decree was initially drafted by Kerry’s attorney, the error was judicial, rather

than clerical, and could not be corrected by a judgment nunc pro tunc.

      Although Kerry’s motion was presented as a request for a nunc pro tunc

judgment pursuant to Rule 316, in considering whether a motion operates to extend

the trial court’s plenary power under Rule 329b, the substance of the motion, not

                                         21
its title, determines the relief sought. 4 See Surgitek v. Abel, 997 S.W.2d 598, 601

(Tex. 1999); see also TEX. R. CIV. P. 71. Here, it is undisputed that Kerry’s

motion asked the trial court to correct the judgment. The motion was filed on

November 30, 2012, within 30 days after the October 31, 2012 final judgment. See

TEX. R. CIV. P. 329b(a), (g). The motion was not determined by January 14, 2013,

the 75th day after judgment, and accordingly, the trial court retained plenary power

to correct the judgment until the 105th day after judgment, February 13, 2013.

TEX. R. CIV. P. 329b(c), (e), (g). The trial court granted Kerry’s motion and

corrected the judgment on January 16, 2013, before the trial court’s plenary power

had expired. See TEX. R. CIV. P. 329b(e), (g).

      We overrule Emelda’s fourth issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                          Rebeca Huddle
                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.


4
      We note that Rule 329b distinguishes between Rule 316 and Rule 329b motions
      because Rule 316 motions may be filed after the trial court’s plenary power has
      expired.
                                        22
