                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00432-CV


WILLOW VISTA ESTATES                                               APPELLANT
HOMEOWNERS ASSOCIATION,
INC.

                                       V.

MELISSA A. HAIGHT                                                   APPELLEE


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          FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Willow Vista Estates Homeowners Association, Inc. (the HOA)

appeals the trial court’s denial of its motion for judgment nunc pro tunc, which

sought to correct a final default judgment against appellee Melissa A. Haight.

We reverse and remand.


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      See Tex. R. App. P. 47.4.
                               Background Facts

       The HOA is responsible for collecting assessments from homeowners in

the Willow Vista Estates development.          Haight is a homeowner in the

development who is required to pay assessments. When Haight failed to pay

after repeated demands, the HOA sued Haight. After she failed to appear or file

an answer, the HOA moved for default judgment, seeking the right to foreclose

upon Haight’s property.

       At the hearing on the HOA’s motion, the trial court explained it was

concerned that Haight “may not have realized that the HOA was attempting to

foreclose on her property.” The trial court stated that it would grant the default

judgment, except for the right to foreclose.       It reset the remainder of the

requested relief (that is, the right to foreclose) and requested that the HOA send

Haight another notice making it clear “that the purpose of the hearing was to

foreclose or to consider foreclosure on her home.”         The HOA submitted a

proposed interlocutory default judgment stating the amount of damages, which

the trial court said it would sign. However, the trial court inadvertently failed to

sign it.

       The HOA sent the notice of the hearing to Haight as the trial court

requested, and Haight again failed to appear at the reset hearing. On September

11, 2012, the trial court granted the default judgment against Haight. The final

default judgment states that the HOA “shall be permitted to foreclose upon the

property as requested,” but it does not state the amount of damages awarded,

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including the assessments due and the attorney’s fees incurred, that was

included in the interlocutory default judgment that the trial court failed to sign.

      On October 26, 2012, the HOA filed a motion for judgment nunc pro tunc,

requesting that the trial court correct the error in the judgment to include the

amount of debt that Haight owed. The trial court denied the motion. It stated that

although its failure to sign the proposed interlocutory default judgment was error,

it could not grant the judgment nunc pro tunc because it had lost plenary power

to modify the final default judgment. The HOA then filed this appeal.

                                     Discussion

      In its sole issue on appeal, the HOA argues that its motion for judgment

nunc pro tunc should have been granted because clerical errors may be

corrected even after the trial court’s plenary power has expired.

      We must first determine whether the complained-of error is clerical or

judicial. A trial court may correct clerical errors in judgments under Texas Rule of

Civil Procedure 316. See Tex. R. Civ. P. 316. However, a trial court cannot

correct a judicial error made in rendering a final judgment once its plenary power

has expired. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). “A judicial

error is an error which occurs in the rendering as opposed to the entering of a

judgment.” Id. That is, a clerical error is a discrepancy between the entry of a

judgment in the record and the judgment that was actually rendered by the court,

and does not arise from judicial reasoning or determination. See Rawlins v.

Rawlins, 324 S.W.3d 852, 855 (Tex. App.—Houston [14th Dist.] 2010, no pet.)

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“The court can only correct the entry of a final written judgment that incorrectly

states the judgment actually rendered. Thus, even if the court renders incorrectly,

it cannot alter a written judgment which precisely reflects the incorrect rendition.”

Escobar, 711 S.W.2d at 231–32. Whether an error is judicial or clerical is a

matter of law. Id. at 232.

      In this case, the trial court orally agreed to sign the proposed interlocutory

judgment, which set the amount of damages recoverable by the HOA from

Haight to be $1,014.86 in unpaid assessments, $2,500 in attorney’s fees,

additional attorney’s fees contingent upon appeals, and postjudgment interest at

the rate of 5% per annum. The HOA does not argue, and the trial court did not

find, that these amounts are incorrect.       The HOA only complains that their

absence from the final judgment makes it impossible for them to foreclose on

Haight’s property. See Tex. R. Civ. P. 309 (“Judgments for the foreclosure of . . .

liens shall be that the plaintiff recover his debt, damages[,] and costs, with a

foreclosure of the plaintiff’s lien on the property subject thereto.”). The trial court

granted the default judgment stating that the HOA could foreclose on Haight’s

property, and it had intended, but failed, to sign the interlocutory summary

judgment, which reflected the amount of damages. The lack of the damages

amount in the final default judgment was therefore a clerical error.

      We next address whether the trial court could correct the judgment to

include the amount of damages after its plenary power expired. Texas Rule of

Civil Procedure 329b(f) states that “a judgment cannot be set aside by the trial

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court except by bill of review for sufficient cause . . . provided that the court may

at any time correct a clerical error in the record of a judgment and render

judgment nunc pro tunc under Rule 316.” Tex. R. Civ. P. 329b(f). The supreme

court has stated, “After the trial court loses its jurisdiction over a judgment, it can

correct only clerical errors in the judgment by judgment nunc pro tunc. In this

regard, the trial court has plenary power to correct a clerical error made in

entering final judgment.” Escobar, 711 S.W.2d at 231 (citing Comet Aluminum

Co. v. Dibrell, 450 S.W.2d 56 (Tex. 1970)). It thus appears clear that a trial court

retains the power to correct a clerical error under Rule 316 even after its plenary

power to modify, correct, or reform a judgment has expired. See Tex. R. Civ. P.

329b (distinguishing a motion to modify, correct, or reform a judgment from a

motion for judgment nunc pro tunc under Rule 316); see also Tex. R. App. P.

4.3(b) (regarding situations in which the trial court has corrected a judgment after

the expiration of its plenary power, thus assuming that such an act may be valid).

      The trial court found in its findings of fact and conclusions of law that it had

intended to sign the interlocutory default judgment so that the HOA could

proceed with foreclosure and that its failure to sign it “was error.” See In re

Broussard, 112 S.W.3d 827, 833 (Tex. App.—Houston [14th Dist.] 2003, orig.

proceeding) (stating that a judgment nunc pro tunc should be granted if the

evidence is clear and convincing that a clerical error was made). The expiration

of its plenary power over the final judgment did not prevent it from entering the



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judgment nunc pro tunc to reflect the relief that it granted to the HOA.        We

sustain the HOA’s issue.

                                    Conclusion

      Having sustained the HOA’s sole issue on appeal, we reverse the trial

court’s denial of the HOA’s motion for judgment nunc pro tunc and remand the

case to the trial court for further proceedings consistent with this opinion.



                                              LEE GABRIEL
                                              JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DELIVERED: August 22, 2013




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