in Re D & KW Family, L.P.

Opinion issued August 9, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00276-CV
———————————
IN RE D & KW FAMILY, L.P., Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator D & KW Family, L.P. intervened in the underlying case several

years after a final judgment had issued in order to file a motion to enter judgment

nunc pro tunc.* After the trial court denied the motion, D & KW filed a notice of

appeal. Kimberly Kay Bidinger, also an intervenor in the underlying case, moved

*
The underlying case is Aldine Independent School District v. Ranch Town,
Inc., No. 94-08239 in the 151st District Court of Harris County, Texas, the
Honorable Mike Engelhart, presiding.
to dismiss D & KW’s appeal for want of jurisdiction. In its response to the motion

to dismiss, D & KW specifically requests that this court treat its appeal as a

mandamus petition, and it filed with that response a document styled as a petition

for writ of mandamus.

We conclude that D & KW has invoked this court’s original jurisdiction and

we treat the appeal as a petition for writ of mandamus. Accordingly, Bidinger’s

motion to dismiss is denied. On the merits, we deny D & KW’s petition for writ of

mandamus.

Background

In January 1994, Aldine Independent School District (“AISD”) sued Ranch

Town, Inc., for unpaid property taxes on several lots in a residential subdivision.

Harris County intervened in the suit and adopted AISD’s petition.

In October of the same year, a master in chancery appointed to the case filed

a report in which it recommended that judgment be granted in the case. The report

does not reflect the substance of the master’s recommendation. In November,

Ranch Town, AISD, and Harris County entered into an agreed judgment that was

signed by the trial court. The agreed judgment ordered Ranch Town to pay

$26,434.45 to AISD and $18,041.10 to Harris County, plus the taxing authorities’

attorney’s fees and court costs. It also specified that if Ranch Town defaulted on

its payment obligations, the court would issue an order directing the Harris County

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Sheriff or Constable to seize and sell the property. The agreed judgment described

the property and rights of way thereon as follows:

LOTS ONE HUNDRED THIRTY-NINE (139) THROUGH ONE
HUNDRED FORTY-TWO, (142), BLOCK NINE (9), ALDINE
MOBILEHOME CITY, AN UNRECORDED SUBDIVISION IN
HARRIS COUNTY, TEXAS, OUT OF THE EAST FIFTY (50)
ACRES, MORE OR LESS, AND ALL RIGHTS OF WAYS WITHIN
SUCH FIFTY (50) ACRES, IN THE JOSEPH MCGINNIS
SURVEY, ABSTRACT 587, SAVE AND EXCEPT THAT PART OF
THE FIFTY (50) ACRES CONVEYED TO THE STATE OF
TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY
METES AND BOUNDS IN ATTACHED EXHIBIT “A” AND
SAVE AND EXCEPT THOSE PROPERTIES PREVIOUSLY
CONVEYED AND DESCRIBED IN DEEDS RECORDED AS
FILM CODE NUMBERS XXX-XX-XXXX, XXX-XX-XXXX, XXX-XX-XXXX,
XXX-XX-XXXX, XXX-XX-XXXX, XXX-XX-XXXX, AND XXX-XX-XXXX, IN
THE DEED RECORDS OF HARRIS COUNTY, TEXAS, SAID
LOTS BEING SHOWN FOR REFERENCE PURPOSES ONLY ON
THE PLAT ATTACHED AS EXHIBIT “B”.

(Emphasis supplied.) Exhibit A, as referenced in the agreed judgment, is a metes

and bounds description of the property; however, it does not describe the rights of

way on the property. Exhibit B is a plat showing the lots within the subdivision

and several rights of way, including a street labeled “Cherilynn Lane.”

When Ranch Town did not pay the agreed judgment, the trial court ordered

that the property be sold. AISD purchased the property at the foreclosure sale.

D & KW subsequently purchased the property at a constable’s sale. Aside from

the absence of any reference to a plat, the constable’s deed described the property

conveyed to D & KW exactly as it was described in the 1994 agreed judgment, and

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it included as an attached exhibit the metes and bounds description of the property,

but not the rights of way.

In a separate case, D & KW brought trespass claims against Bidinger and

her husband, Alfredo Arturo Ballestas, who together owned an adjacent property

accessible by “Cherilyn Lane.” See D & KW Family, L.P. v. Bidinger, No. 01-08-

00260-CV, 2009 WL 1635216, at *3 (Tex. App.—Houston [1st Dist.] June 11,

2009, pet. denied) (mem. op.) (“D & KW I”). D & KW claimed to own rights of

way encompassing Cherilyn Lane, and it sought an injunction preventing Bidinger

and Ballestas from accessing their property by way of that road. See id. Bidinger

and Ballestas counterclaimed for an implied easement and easement by necessity.

See id. The trial court in that case resolved cross-motions for summary judgment

in favor of Bidinger and Ballestas, and D & KW appealed to this court. Id.

A key issue in that appeal was whether D & KW had acquired good and

perfect title to the Cherilyn Lane right of way. Id. at *7. In analyzing the

description of the rights of way in D & KW’s deed, this court stated the following:

The grant of “all rights of way” within the 50-acre tract is
legally insufficient to confer fee simple title to Cherilyn Lane for
several reasons. Within the deed itself, there is a purported grant of
all rights-of-way, but the metes and bounds description attached to the
deed does not refer to any right-of-way. The written instrument that
purports to convey title does not, therefore, furnish within itself, or by
reference to some other existing writing, the means or data by which
the land conveyed may be identified with reasonable certainty. The
conveyance of “all rights of way” fails because of a lack of metes and
bounds description or any other existing writing from which to
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 determine the location, size, and boundaries of the rights of way with
the requisite reasonable certainty.

Further, the language of conveyance of “all rights of way” by
the constable’s deed in this case is much like a conveyance of an
unidentified portion of a larger, identifiable tract, which the Supreme
Court of Texas has long held to be insufficient.

Finally, the constable’s deed does not provide any means by
which a surveyor could locate and determine the rights-of-way.
Indeed, Bidinger’s and Ballestas’s summary-judgment evidence
includes the affidavit of a professional surveyor who attested to his
inability to rely on the descriptions provided by the constable’s deed
and supporting exhibit to aid in determining the property conveyed.
D & KW responded by providing the affidavit of another professional
surveyor who stated that he was able to determine the metes and
bounds of the Cherilyn Lane right-of-way by referring to the tax plats
in the Assessor’s Block Book for Harris County. To be competent,
evidence relied on to locate, size, and determine boundaries must refer
to existing writings such as tax tract maps. The critical distinction
here is the lack of an existing writing that refers to the tax plat. In this
case, there is only the opinion of D & KW’s professional surveyor
that refers to the tax plat.

Id. at *9 (emphasis, footnote, quotation marks, and citations omitted). This court

affirmed the summary judgment in favor of Bidinger and Ballestas. Id. at *10.

Following disposition of that appeal, AISD filed a motion for entry of a final

judgment nunc pro tunc in the 1994 tax delinquency suit. AISD’s proposed

judgment nunc pro tunc would have more particularly described the metes and

bounds of the rights of way over the property that AISD foreclosed upon and

subsequently conveyed to D & KW.

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 Bidinger intervened to oppose the request for judgment nunc pro tunc.

D & KW also intervened, and it joined and adopted AISD’s motion. AISD

subsequently withdrew its motion, thereby leaving only D & KW to prosecute it.

A tax master filed a report recommending that the motion for entry of judgment

nunc pro tunc be denied. See TEX. TAX CODE ANN. § 33.71 (West 2008)

(authorizing appointments of tax masters in tax delinquency suits).

D & KW appealed the tax master’s recommendation to the district court.

See TEX. TAX CODE ANN. § 33.74 (authorizing appeals from tax master’s

recommendation to referring court). Following a hearing, the trial court signed an

order denying D & KW’s motion for entry of judgment nunc pro tunc. D & KW

filed notice of appeal from that order.

Analysis

I. Jurisdiction

In its original brief, D & KW styled its application to this court as an appeal

of the trial court’s order denying entry of judgment nunc pro tunc. Bidinger filed a

motion to dismiss the appeal for want of jurisdiction, contending that this court

lacks appellate jurisdiction over such an order. See TEX. R. APP. P. 42.3. Without

disputing this point, D & KW responded by asking that we treat its application as a

petition for writ of mandamus, and it also filed with its response a document styled

as such.

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 Appellate courts generally have jurisdiction only over final judgments,

although a statute can authorize appeals from specific types of orders. CMH

Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); see also, e.g., TEX. CIV. PRAC.

& REM. CODE ANN. § 51.014 (West Supp. 2011) (authorizing appeals from certain

interlocutory orders). An order denying a motion for entry of judgment nunc pro

tunc is not an appealable, final judgment. Shadowbrook Apartments v. Abu-

Ahmad, 783 S.W.2d 210, 211 (Tex. 1990) (per curiam). Nor does any statute

authorize an appeal from such an order. See, e.g., TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014. Therefore, appellate courts must ordinarily dismiss for want of

jurisdiction appeals that challenge an order denying judgment nunc pro tunc. See,

e.g., Shadowbrook Apartments, 783 S.W.2d at 211; Gonzalez v. Dep’t of Family &

Protective Servs., No. 01-11-00205-CV, 2012 WL 1564664, at *3 (Tex. App.—

Houston [1st Dist.] May 3, 2012, no pet.) (mem. op.). Because D & KW appeals

an order denying judgment nunc pro tunc and such an order is not appealable, we

hold that this court lacks jurisdiction to consider the appeal as a direct appeal. See

Shadowbrook Apartments, 783 S.W.2d at 211.

Nevertheless, in an appropriate case, we may treat an appeal as a petition for

writ of mandamus. See CMH Homes, 340 S.W.3d at 452–53. An appellant who

specifically requests that its appeal be treated as a mandamus petition invokes this

court’s original jurisdiction. Id.; see also TEX. GOV’T CODE ANN. § 22.221(b)

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(West 2004) (authorizing courts of appeals to issue writs of mandamus). In CMH

Homes v. Perez, 340 S.W.3d 444 (Tex. 2011), the Supreme Court of Texas held

that an appellant who filed an appeal from an unappealable order was nevertheless

entitled to have its appeal treated as a petition for writ of mandamus because the

appellant specifically requested mandamus relief and because requiring the

appellant to file a separate document entitled “petition for writ of mandamus”

would “unnecessarily waste the parties’ time and further judicial resources.” CMH

Homes, 340 S.W.3d at 453–54.

Likewise, in this case, requiring D & KW to initiate a separate mandamus

proceeding would unnecessarily waste the parties’ time and further judicial

resources. D & KW not only specifically requested mandamus relief, it also

submitted a document in the form of a petition for writ of mandamus. Moreover,

the necessary trial record has already been filed with this court and the parties have

briefed the merits of the case. Because the order appealed from is unappealable,

D & KW has specifically requested mandamus relief, and treating this appeal as a

petition for writ of mandamus advances the interest of judicial efficiency, we will

consider this appeal as a petition for writ of mandamus. See id.; see also In re

Bridges, 28 S.W.3d 191, 195–96 (Tex. App.—Fort Worth 2000, orig. proceeding)

(holding that mandamus relief was available and appropriate when trial court

erroneously denied motion for entry of order nunc pro tunc), cited with approval in

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In re Daredia, 317 S.W.3d 247, 249–50 (Tex. 2010) (per curiam, orig.

proceeding). We deny Bidinger’s motion to dismiss for want of jurisdiction.

II. Mandamus

Mandamus relief is available if the relator establishes a clear abuse of

discretion for which there is no adequate remedy by appeal. In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court

has no discretion in determining what the law is or applying the law to the facts.

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). If the trial

court fails to analyze or apply the law correctly, the trial court abuses its discretion.

Id. With respect to the resolution of factual issues, however, the reviewing court

may not substitute its judgment for that of the trial court. Id. at 839. The relator

must establish that the trial court could have reasonably reached only one

conclusion. Id. at 840. As previously discussed, D & KW does not have recourse

to an appeal to challenge the trial court’s denial of its motion. Consequently, the

only remaining question is whether D & KW has established that the trial court has

clearly abused its discretion. See Prudential, 148 S.W.3d at 135–36.

D & KW argues that the trial court clearly abused its discretion in refusing

to render a judgment nunc pro tunc because it was a clerical error, rather than a

judicial one, to have omitted in the 1994 agreed judgment a description of the

metes and bounds of the rights of way over its property. D & KW contends that

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when the agreed judgment described the foreclosed property to include “ALL

RIGHTS OF WAYS WITHIN SUCH FIFTY (50) ACRES,” the trial court did not

intend to render a judgment reflecting a legally insufficient description of the rights

of way. It asserts that the metes and bounds description is readily determined by

reference to the tax plat filed in the Harris County Assessor’s block book and that

adding the pertinent description involves no judicial reasoning.

Bidinger points out that the judgment at issue is an agreed judgment. She

contends that the judgment was drafted by one of the parties’ attorneys and argues

that the error alleged by D & KW became part of the court’s judgment as rendered,

thereby making it a judicial error. Bidinger also contends that entering the

judgment nunc pro tunc would require the trial court to exercise its judicial

reasoning to determine whether AISD intended to sue for all rights of way or only

certain rights of way. Furthermore, Bidinger argues that in D & KW I, this court

specifically rejected the possibility of using the tax plat to supply the metes and

bounds of the rights of way.

Absent a motion that extends the trial court’s plenary power, the trial court

has plenary power to modify its final judgment or order within 30 days of signing

it, and the court loses jurisdiction to modify its judgment after the 30 days has run.

TEX. R. CIV. P. 329b(d); Martin v. Tex. Dep’t of Family & Protective Servs., 176

S.W.3d 390, 392 (Tex. App.—Houston [1st Dist.] 2004, no pet.). An exception to

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this general rule is that the trial court can correct clerical errors by judgment nunc

pro tunc even after it loses plenary power. Escobar v. Escobar, 711 S.W.2d 230,

231 (Tex. 1986). The judgment nunc pro tunc may be entered at any time for this

purpose. TEX. R. CIV. P. 316 & 329b(f); Barton v. Gillespie, 178 S.W.3d 121, 126

(Tex. App.—Houston [1st Dist.] 2005, no pet.). “A clerical error is a discrepancy

between the entry of a judgment in the record and the judgment that was actually

rendered.” Barton, 178 S.W.3d at 126. Rendition occurs when the trial court’s

decision is officially announced either by a signed memorandum filed with the

clerk of the court or orally in open court. Id.

Unlike with clerical errors, the trial court cannot correct a judicial error after

the expiration of plenary power by entering a judgment nunc pro tunc. Escobar,

711 S.W.2d at 231–32. A judicial error is one that arises from a mistake of law or

fact that requires judicial reasoning to correct, and it occurs in the rendering, rather

than the entering, of the judgment. Barton, 178 S.W.3d at 126. “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 232. Stated another way, “if the

judgment entered is the same as the judgment rendered, regardless of whether the

rendition was incorrect, a trial court has no nunc pro tunc power to correct or

modify the entered judgment after its plenary jurisdiction expires.” Hernandez v.

Lopez, 288 S.W.3d 180, 187 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (op.

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on rehearing). “A judgment rendered to correct a judicial error after plenary power

has expired is void.” Id. at 185 (citing Dikeman v. Snell, 490 S.W.2d 183, 186

(Tex. 1973)).

Whether an error in a judgment is clerical or judicial is a question of law.

Escobar, 711 S.W.2d at 232. In order to make a nunc pro tunc correction or

modification of a judgment, the evidence must be clear and convincing that a

clerical error was made, that is, that the entered judgment differs from the

judgment actually rendered. See Barton, 178 S.W.3d at 127; see also America’s

Favorite Chicken v. Galvan, 897 S.W.2d 874, 877 (Tex. App.—San Antonio 1995,

writ denied) (“In order to issue a judgment nunc pro tunc, there must be some

evidence that the judgment the trial judge actually rendered is not correctly

represented in the judgment she signed and entered of record.”). Evidence of the

judgment actually rendered may derive from oral testimony of witnesses, written

documents, previous judgments, docket entries, or the trial judge’s personal

recollection. Barton, 178 S.W.3d at 127.

When someone other than the trial court prepares a proposed written order

or judgment that reflects a mistake, and the trial court, without having already

rendered judgment, signs the proposed order or judgment, the mistake becomes

part of the court’s judgment as actually rendered and it is therefore a judicial error

rather than a clerical error. See, e.g., Daredia, 317 S.W.3d at 250. The foregoing

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rule is illustrated by Hernandez v. Lopez, 288 S.W.3d 180 (Tex. App.—Houston

[1st Dist.] 2009, no pet.). In that case, a child-support enforcement hearing was

held before a master. Hernandez, 288 S.W.3d at 182. The mother, the father, and

the Office of the Attorney General of Texas signed an agreed order reflecting a

mistake, specifically, a finding that the father was in arrears in the amount of

$51,000.00 as of December 31, 2004, a date eleven months in the future from the

time when the agreed order was signed. Id. The trial court then signed the agreed

order. Id. There was no record of any hearing at the time the trial court signed it.

Id.

Two years later, the Office of the Attorney General moved for judgment

nunc pro tunc, alleging that the date reflected in the agreed order should have read

December 31, 2003. Id. at 182–83. The trial court granted the motion and entered

judgment nunc pro tunc. Id. at 183. On appeal, this court stated:

The terms of the Agreed Order were set forth by the parties, and the
Agreed Order states that the master submitted “the proposed” Agreed
Order to the trial court and recommended its approval. On
January 27, 2004, when the trial court signed the Agreed Order
adopting the master’s recommendation as the order of the court,
rendition of the judgment occurred. The error at issue herein, if any,
occurred in the rendering of the judgment.

Id. at 185–86 (emphasis, footnote, and citations omitted). Finding no evidence in

the record that the trial court actually rendered judgment before signing the agreed

order, this court vacated the judgment nunc pro tunc. Id. at 187–88.

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 This case is similar to Hernandez. AISD’s petition described the rights of

way on the property as “ALL RIGHTS OF WAYS WITHIN SUCH FIFTY (50)

ACRES,” without greater detail. The master’s report recommended that

“judgment” should be granted in the case, without specifying what that judgment

should be. The trial court signed an agreed proposed judgment, describing the

rights of way only as “ALL RIGHTS OF WAYS WITHIN SUCH FIFTY (50)

ACRES.” Counsel for all parties signed the agreed judgment beneath the words

“agreed as to substance and form.”

There is no indication in the record that the trial court actually rendered,

orally or otherwise, a judgment different from the one it signed and entered.

Accordingly, we hold that the evidence is not clear and convincing that the

judgment reflects a clerical error. See Barton, 178 S.W.3d at 127; cf. Hernandez,

288 S.W.3d at 187 (“[T]here is no evidence in the record that the trial court

intended to do anything other than grant the motion exactly as the parties

requested, and there is no evidence in the record before us with regard to any prior

rendition of judgment.”). The fact that the agreed judgment fails to more

particularly describe the metes and bounds of the rights of way does not, by itself,

suffice to show that the alleged error is clerical rather than judicial. Cf. Hernandez,

288 S.W.3d at 187 (“[I]t is of no consequence which date [the mother] may have

intended in the Agreed Order that she signed or whether this Court can agree that

14
the date that [the mother] now asserts is, as a matter of logic, the date everyone . . .

must have intended.”).

Conclusion

Having failed to present clear and convincing evidence that the alleged error

in the agreed judgment was clerical rather than judicial, D & KW has not

demonstrated that the trial court clearly abused its discretion in denying its motion

for entry of judgment nunc pro tunc. Accordingly, we deny the petition for writ of

mandamus.

Michael Massengale
Justice

Panel consists of Justices Bland, Massengale, and Brown.

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