Briargrove Park Property Owners, Inc. v. Riner

*268ON MOTION FOR REHEARING

In his motion for rehearing, Stephen Riner insists that the common law rule of tender prohibits Briargrove’s recovery of attorney’s fees. As noted in our original opinion, Riner tendered Briargrove $2,000.00, which was more than the assessments but which did not include costs or attorney’s fees.

Generally, a tender for the full amount of an obligation before suit is filed relieves the obligor of any liability for costs of any subsequent suit on the obligation. 58 Tex.Jur.3d Payment § 17 (1988). When attorney’s fees are authorized on the obligation, however, the tender is ineffective unless it includes the attorney’s fees. H.B. Zachry Co. v. Ceco Steel Products Corp., 404 S.W.2d 113, 135 (Tex.Civ.App.-Eastland 1966, writ ref’d n.r.e.); Kinzbach Tool Co. v. Corbett-Wallace Corp., 145 S.W.2d 235, 240 (Tex.Civ.App.-Galveston 1940), rev’d on other grounds, 138 Tex. 565, 160 S.W.2d 509 (1942); 58 Tex.Jur.3d Payment § 9 (1988). Riner’s tender was made after Briargrove filed its counterclaim to recover the assessments, costs, and attorney’s fees, and the tender did not include the costs or attorney’s fees. Thus, the tender was ineffective.

Riner also objects to our statement in the opinion that he was awarded the property. He contends that he only holds an interest in the property and has possession of the property. In his first amended answer to Briargrove’s counterclaim, Riner stated that the property was his homestead. Nevertheless, since the judgment did not award the assessments or fees against Riner personally, but against the property, the character of his interest in the property and whether he received that interest as an award in the lawsuit affecting the property or from some other source is not material to this appeal.

The motion for rehearing is overruled.