1 John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeal s, si tt ing by assignment. Tex. Gov’tCode An n. §7 5.00 2(a) (1) (V erno n 20 05). NO. 07-04-0277-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E MARCH 20, 2006

______________________________ CLARE CONSTAT, L TD. and STEPHEN Y ORK TAYLOR, Appellants
v. MAX SWINBURN, Appellee

_________________________________ FROM THE 242 ND DISTRIC T COURT O F CASTRO COUNTY; NO. B7857-0202; HON. ED SELF, PRESI DING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., REAVIS, J. and BO YD, S.J. 1 Appellants, Clare Cons tat, Ltd. and Stephen York Tay lor (coll ectively referred to as Taylor) appeal from a judg ment and an “Order Granting Judgm e nt Nunc Pro Tunc. ” Throu gh the former, Tayl or was ordered to conv ey realty to Max Swinburn (Swinbur n) per a contract ex

ecuted by thos e parties. Vi a the latter, t he trial cour t also order

ed Taylor to convey to Swinbur n variousimprovementslocated on the pr oper ty. The impr

ovements2

included a field reside nce, four irr igation w el ls w ith pumps, gearheads, cooling jackets, drivelines, and a half mile ce nter pivot sprinkler

system. Tay lor asserts, through four issues, that the trial court erre d in executi ng its ini tial judgment directing that the realty b e conveyed and in exec uting th e orde r granti ng judgment nunc pro tunc . We dismiss that issue contesting the validi ty of the initial j udgment and affirm the or der granti ng judgment nunc pro tunc

. Appeal from

the Initial Judgment The initial j udgment wasexecuted on J uly 11, 2003. No one moved for a new tri al or perfected an appeal within 30 days from that date. Thus, it became final. Next, the contentions unde rlying his attack upon the July 11 th judgment ( i.e. whether the trial court had the aut hority toorder conveyance of the realty i tself) wer e fodder for an appeal immedia tely after th e trial cour t executed the decree. How ever, they

were not made the subject of an appeal until after ex ecution of the order

granting judgment

nunc pro tunc on Ap ril 12, 2004. Because the is sues invol ving theJuly 11 th judgment were susceptible to appeal immediatel y after execution of that decree but were not raised until the trial court gr

anted the nunc pro tunc judgment, we cannot entertai n them. T EX
. R. C IV
. P. 329b(h); Daniels v. Comm ission for Lawyer Disci pline, 142 S.W .3d 5 65, 5 69 n. 3 (Te x. App.–Texarkana 20 04, no pet.). Validity of Nunc Pro Tunc Order As to the issues concerning the validity of the “Order Granting Judgment Nunc Pro Tunc,” we note that once a trial court’s plenary power over a judgment expires, it generally cannotmodify the decr ee except thr

ough a bill of rev iew. Barton v. Gillespie , 178 S.W.3d3

121, 126 (Tex. App .--Houston [1 st ] 2005, no pet.). However, an exception to the rule applies whe n th e modification is undertaken to r

ectify a cl erical mis take. Colorado InterstateGas

Corp. v. H

unt Energy

Corp., 47 S.W.3d 1, 16 (Tex. App.–Amaril lo 2000, pet. denied); Ferguson v. N

aylor, 860 S.W.2d 123, 126 (Tex. App.–Amarillo 1993, writ denied). Furthermore, a change isof that ilk w hen made to accurate ly reflect the true dec ision previously

made by the cour

t. Andrews v. Koch , 7 02 S.W.2d 584, 586 (Tex. 1986); Ferguson v. Naylor

, 860 S.W.2d at 126. In other words, it is one undertaken to assure that the physical judgment sig ned by the cour t comports with the decision actua lly ren dered. Gray v. Tur

ner, 807 S.W .2d 818, 822 (Tex. App.– Amarillo 1991, no writ). Here, according to Taylor, the trial court’s effort to order conveyance of the center pivot spr inkler system and other personalty as part of th e sale between Taylor an d Swinburn was more than mere effort to have the physic al judgment ac curately reflect the true decision pr

eviously rendered. Ra ther, the tri al court intended to order the conveyance of merely the realty itself via the July11 th decree, Tayl or continued. Yet, the record beli es this contention. F or

instance, at t he hearing on Swinbur n’s motion to correct the dec ree, the trial judg e stated that “it w as the intent of the C ourt that the cen ter pivot sprinkler system be a part of the specific perfor mance that was[previously] ordered.” See Gray v. Tu rner, 807 S.W .2d at 822 (stating that a judge’s recollection is com petent evidence t o support the entry of a corrected judgment). So too did it specify in its finding s of fact and
con clusions of l aw (iss ued in support of theJuly 11 th decree and long before Swinburn moved to change it) that Taylor was “obl igated to ex

ecute and deliver

to Swinbur n a bill of sale conveyi ng all per

sonal property

described i n the Contract as it applies to Tracts 1 and4

2.” Further more, the contrac t at issue des cribed the pr operty bein g sold not onl y as the realty comprising tracts 1 and 2 (as well as a thi rd tract)but also “al l improvement s thereon, in cluding without l imitation by enumeration, one fiel d residence, four irrig ation wells , complete with pumps, gearheads, cooling jackets, and drive l ines, [sic] one-half mile cen ter pivot sprin kler s ystem comp lete . . . .” Final ly, that the pivot system was phy sically located
on at l east one of the two trac ts the court or

dered Taylor

to convey

is beyond d ispute. Giv en the latter, thewords of the contract, the r ecollection of the trial ju dge, and the statements included in the a for eme ntio ned find ings o f fa ct an d con clus ions of la w, there is more than ample ev idence to suppor t the conclusi on that the actual judgment render ed included the conveyance to Taylor of the realty

as well as the center pivot spr inkler sy stem and other propert

y in di sp ute. So, the “O rder Granti ng Judgment Nunc Pro Tunc ” was simplya modification under taken to assurethat the phys ical judg ment comported w ith the judgment actual ly render ed. Cons eque ntly, we dismi ss that issu e attacking the July 11 th judgment, overrule the others, and affirm the order gra nting judg ment nunc pro tunc

.
Brian Quinn Chi ef Justice