Full opinion text
OPINION CHARLES KREGER, Justice This is an appeal from a dispute between appellant, The Note Investment Group, Inc. (“TNIG”), and appellee, Associates First Capital Corp., successor by merger to Associates Financial Services Company, Inc. (“Associates”), regarding the sale by TNIG of partial interests in certain seller-financed- notes and contracts for deed to Associates. In three points of error, TNIG contends that the trial court erred by: (1) awarding litigation costs to Associates under Texas Rule of Civil Procedure 167; (2) concluding that Associates made a valid tender of funds to TNIG, thereby precluding TNIG’s recovery of attorney’s fees and: interest following the date of the .tender; and (3) reconsidering and granting Associates’ motion for partial summary judgment without notice after previously denying, same. We affirm. I. Factual Background A. Associates’ Purchases of Seller-Financed Notes and Contracts for Deed Associates, through its private mortgage operations division (“PMO”), was in the business of purchasing seller-financed notes and contracts for deed. In some cases, Associates purchased the entirety of a note or contract for deed, and in each such instaneé, Associates paid the full purchase price for the note or contract at the time of the purchase. In other cases, Associates purchased only a partial interest in the note or contract for deed. A “partial interest” consists of a set number of payments under a note or contract for deed. On occasion, Associates purchased the “back-end” or remainder interest in a note or contract for deed after initially purchasing a partial' interest. The “remainder interest” consisted of all payments remaining due under the note or contract following the partial interest. In 1999, Associates began purchasing partial interests in seller-financed notes and contracts for deed from TNIG. Each transaction involving the sale of a partial interest was governed by an individual, transaction-specific written agreement between TNIG and Associates, taking one of two forms. For transactions involving the sale of a partial interest in a promissory-note secured by a deed of trust, TNIG and Associates entered into a written agreement called a “Deed of Trust Participation Agreement.” For transactions involving the sale of a partial interest in a contract for deed, TNIG and Associates entered into a written agreement called an “Agreer ment for Purchase of a Participation in an Installment Land Sales Contract.” For simplicity, and unless otherwise stated, we refer to both types of agreements collectively as “DOTPAs.” The DOTPAs provided for certain contingencies based on the manner in which the borrower’s payments under the note or contract for deed were ultimately made. First, if a note or contract for deed was. paid in full by the borrower prior to the end of Associates’ partial interest, the DOTPAs provided that Associates would be entitled to retain a certain portion of the payoff proceeds (the “Guaranteed Yield”). All proceeds in excess of the Guaranteed Yield were required to be paid to the “Seller,” which the DOTPAs defined as TNIG. When a note or contract for deed was paid in full by the borrower prior to the end of Associates’ partial interest, the partial interest in the note or contract for deed was referred to as a “paid-off’ partial. Second, if a note or contract for deed' went into default for a period of sixty days during the time period covered by Associates’ partial interest, the DOTPAs provided that TNIG was entitled to either (1) repurchase Associates’ interest in the note or contract for deed within thirty days following notice from Associates, or (2) cure the default within thirty days and undertake in writing to make all future scheduled payments to Associates. ' If TNIG failed to repurchase Associates’ interest or cure the default in a timely manner, Associates had the right under the DOTPAs to foreclose on the property that was the subject of the note or contract for deed. In the event Of a foreclosure sale, the DOTPAs provided a formula for the calculation of the amount of the foreclosure proceeds that Associates was entitled to retain (the “Foreclosure Minimum”), and all proceeds, if any, in excess of the Foreclosure Minimum were to be paid to the “Seller.” Third, if all payments were timely made to Associates under its partial interest as they became due, the Deed of Trust Participation Agreements provided that Associates, upon receipt of the final payment under the partial interest, was required to assign the note to the owner of the remainder interest and advise the borrower to make all future payments to the “Seller.” Under such circumstances, the partial interest in the note was referred to as a “paid-out” partial. TNIG brokered the sales of the partial interests to Associates. Specifically, TNIG purchased notes or contracts for deed in their entirety from third-party sellers, and on the same day or shortly after those purchases, TNIG sold partial interests in those notes or contracts for deed to Associates. In many cases, TNIG purchased the notes and contracts for deed from its sellers under purchase agreements requiring two installment payments by TNIG. Under those purchase agreements, TNIG agreed to pay the first installment to its seller at the time it purchased the note or contract for deed from the seller, and it agreed to pay the second installment to its seller thirty-six months thereafter, provided that the note or contract for deed did not go into default or was not paid in full prior to that time. If the note or contract went into default within the first thirty-six months of TNIG’s purchase, TNIG was not required to pay the second installment to its seller. If the note or contract for deed was fully paid within the first' thirty-six months of TNIG’s purchase, TNIG was required to pay its seller the second installment at the time of the payoff, and TNIG usually made such payment using the excess funds that TNIG received from Associates for the paid off partial under the terms of the DOTPAs. However, if the note or contract for deed did not go into default and was not fully paid.within the first thirty-six months of TNIG’s purchase, TNIG was contractually obligated to pay its sellers the second installment on the thirty-six month anniversary of its original purchase of the note or contract. B. The “Global Agreement” Dispute Most, if not all, of the sales of partial interests by TNIG to Associates occurred between late 1999 and mid-2001. In 2000, Citigroup, Inc. (“Citigroup”) acquired Associates. Within a few months of the acquisition, Citigroup decided to wind down the operations of Associates’ PMO division and to cease purchasing seller-financing paper. Accordingly, in May 2001, Associates notified its brokers and sellers, including TNIG, that it would no longer be purchasing seller-financing paper, and in June 2001, Associates ceased purchasing such paper from its brokers’ and sellers. After Associates announced that" it would no longer be purchasing seller-financing paper, TNIG contacted the sellers to whom it owed second installment payments and offered to reassign each seller the remainder interest in the note or contract for deed in exchange for that seller’s agreement to release TNIG from its obligation to make the second installment payment under the purchase agreement. In some cases,' TNIG’s seller accepted the offer, and TNIG assigned the remainder interest in the note or contract for deed back to the seller, who released TNIG from its obligation to pay the second in-stallmént obligation under the purchase agreement. In other cases,'TNIG’s sellers did not accept the offer, and in many such cases, TNIG failed to pay the second installment owed to its seller when it became due. At least two of those sellers sent demand letters to TNIG threatening to sue TNIG if it did not immediately make the second installment payment. under their purchase agreements with TNIG. One seller ultimately filed suit against TNIG and Associates based on TNIG’s alleged failure to make the second installment payment under the seller’s purchase agreements with TNIG. According to TNIG’s pleadings in the present lawsuit, TNIG sent a series of letters to Associates in February and March • 2003. In those letters, TNIG claimed that Associate's was contractually bound to purchase the remainder interests in the notes and contracts for deed in which Associates had previously purchased partial interests from TNIG. Specifically, TNIG claimed that Associates and TNIG entered into an agreement (the “Global Agreement”) in 1999 and that under such agreement,1 Associates had agreed to purchase the entirety of certain notes and contracts for deed from TNIG through a two-staged funding arrangement that essentially mirrored the terms of TNIG’s purchase’agreements with its sellers. According to TNIG, the Global Agreement required Associates: (1) to purchase a partial interest from TNIG in each of the notes and contracts for deed that formed the basis of the Global Agreement (the first funding stage), and (2) to subsequently purchase the remainder interest in each note and contract for deed thirty-six months after the date of Associates’ partial interest purchase (the second funding stage). TNIG demanded that Associates pay the purchase price for the remainder interests in pertain notes and contracts for -deed that had purportedly become, due or were about to become due under the Global Agreement. According to TNIG, Associates initially requested additional information regarding TNIG’s claims and demands, but subsequently- refused to respond to TNIG’s demands. C. The DOTPA Dispute Disagreements between TNIG. and Associates also arose in connection with the parties’ rights and obligations under the terms of the DOTPAs, In December 2001, Associates engaged Grand Servicing Corporation. (“Grand”) to service the partial interests owned by Associates, including the partial interests that Associates had purchased from TNIG. Soon after Associates hired Grand, Associates and Grand became aware of certain instances of fraud by sellers of partial interests in seller-financed notes and contracts for deed. Examples of such fraud included instances in which the seller did not own. some or all of the partial interest that it sold, despite representations to the. contrary, as well as instances in which the seller claimed that it was entitled to receive proceeds for a paid-off partial interest or that it was entitled .to reassignment of a note or contract following the expiration -.of Associates’ partial interest when, in reality, the seller had previously transferred the remainder interest to a third party. None of the fraudulent transactions involved TNIG. However, after learning of the fraud, a Citigroup attorney instructed Grand to begin verifying: (1) that any person or entity to whom it reassigned a note or contract for deed following the expiration of Associates’ partial interest actually owned the remainder interest in the note or contract; (2) that any person or entity to. whom Grand paid excess funds, if any, remaining following a. foreclosure sale or following an early payment in full of the note or contract for deed actually owned the remainder interest in the note or contract; and (3) that all persons or entities that were entitled to receive any portion of the excess funds remaining after a foreclosure sale or following an early pay off of the note or contract for deed actually received payment.. Grand applied the verification procedures to all partial interests owned by Associates, not .just those that Associates purchased from TNIG. Following the implementation of the verification procedures, whenever Grand received proceeds from an early payoff of a' note or contract for deed or from a foreclosure sale involving property securing a note or contract for deed, Grand paid Associates its Guaranteed Yield or Foreclosure Minimum out of the proceeds, as required under the DOTPAs.. However, . before Grand paid any proceeds in excess of the Guaranteed Yield or Foreclosure Minimum (collectively, “excess proceeds”) to TNIG, Grand began requiring TNIG to provide Grand with sufficient documentation, such as TNIG’s purchase agreement with its seller, to verify, that TNIG was, in fact, the owner of the remainder interest in the note or contract for deed. Similarly, whenever Associates’ partial interest in a note or contract for deed paid out (i.e., all monthly payments under Associates’ partial interest were paid by the borrower as they became due), Grand began requiring TNIG to provide documentation sufficient to verify that TNIG was still the owner of the remainder interest before Associates would reassign the remainder interest back to TNIG. When TNIG received Grand’s requests for documentation, TNIG provided the requested documentation to the extent it had the documentation in its files. TNIG, however, did not have a purchase .agreement with its seller for every account, and in many eases, TNIG was unable to provide documentation sufficient to satisfy Grand that TNIG owned the entirety of the remainder interest in a note or contract. To complicate, matters further, Grand realized over time that although a copy of the -purchase agreement between TNIG and its seller was sufficient to verify whether TNIG had initially purchased the entirety of the note or contract for deed from its seller (and, thus, that TNIG owned the remainder interest in .the note or contract at the time it entered into the DOTPA with Associates), it was not sufficient to verify that TNIG had paid its seller the second installment under the purchase agreement and, therefore, that TNIG was the only entity with a claim to the excess proceeds under the DOTPAs. The purchase agreement between TNIG and its seller was also not sufficient to verify that TNIG still owned the remainder interest and had not assigned the remainder interest back to its seller or to a third party since entering into the DOTPA with Associates. Therefore, in certain cases, even when TNIG provided Grand with a copy of the purchase agreement between TNIG and its seller, Grand nevertheless required TNIG to provide additional documentation, such as a release, a can-celled check showing that TNIG had paid its seller the second installment under the purchase agreement, or a written statement from TNIG indicating whether it had paid the second installment to its seller, before Grand would release the excess proceeds to TNIG or its sellers under the DOTPAs. Initially, in some cases, Grand was able to obtain documentation sufficient to verify that TNIG owned the remainder interest in the note or contract for deed and that TNIG still owed the second installment payment under its purchase agreement with its seller. In those cases, if Grand was able to verify the amount that TNIG owed to its seller for the second installment payment, Grand reléased the excess proceeds in the form of two checks: one to TNIG’s seller for the amount of the second installment payment, and one to TNIG for the rest of the excess proceeds. However, Grand’s representative testified that as time went on, TNIG became less cooperative and less willing to comply with Grand’s verification requests. In cases in which Grand was able to determine that TNIG still owned the remainder interest in a note or contract for deed, but was unable to verify the amount, if any, that TNIG still owed to its seller, Grand attempted to disperse the excess proceeds by issuing a joint check made payable to both TNIG and its seller for the total amount of the excess proceeds. TNIG, however, refused to accept payment in the form of the joint checks if received from Grand. Eventually,-Grand began placing all excess proceeds for paid-off accounts and accounts involving foreclosure sales in a non-interest bearing escrow account (the “Escrow Account”), rather than releasing those funds to TNIG or to TNIG’s sellers. Likewise, to the extent any accounts paid out (i.e., Associates collected all payments due under its partial interest), Grand did not reassign the note or contract for deed back to TNIG following the expiration of Associates’ partial interest, but instead continued to collect monthly payments under the notes or contracts for deed and placed those payments in the Escrow Account. At trial, Grand’s representative testified that the excess proceeds and payments for paid-out accounts were placed in the Escrow Account “for safekeeping, until such time as [Grand] would gather enough documentation to ascertain where they should be dispersed.” . II. Procedural Background On August 14, 2006, TNIG filed suit against Associates. In its pleadings, TNIG asserted claims against Associates for breach of contract, fraud, conversion, and unjust enrichment arising out of Associates’ failure to make second funding payments under the alleged Global Agreement (the “Global Agreement Claims”). TNIG sought actual damages in the amount of $917,260, which TNIG claimed was equal to the aggregate amount of the alleged second funding payments due under the Global Agreement, plus attorney’s fees and exemplary damages. In October 2009, TNIG nonsuited its claims against Associates in that lawsuit and filed a virtually identical lawsuit against Associates on December 21, 2009. On May 13, 2011, Associates filed a traditional and no-evidence motion for summary judgment on the Global Agreement Claims. In its motion, Associates argued, among other things, that it was entitled to summary judgment because: (1) no Global Agreement existed between TNIG and Associates; (2) even if it was assumed that the Global Agreement existed, it was unenforceable under the statute of frauds; (3) the admission of evidence regarding the alleged Global Agreement was barred by the parol evidence rule; and (4) TNIG’s claims for fraud, conversion, and unjust enrichment arising out of the Global Agreement were barred by the economic loss rule. TNIG filed its response to Associates’ summary judgment motion on June 2, 2011. On June 6, 2011, prior to any ruling by the trial court on Associates’ motion for summary judgment, Associates filed a “Declaration of Settlement Offer” pursuant to Texas Rule of Civil Procedure 167. Four days later, on June 10, 2011, Associates sent TNIG a written settlement offer, in which Associates offered to pay TNIG the aggregate sum of $350,000 in exchange for a dismissal and release of TNIG’s claims. It is undisputed that TNIG did not accept the offer. On June 22, 2011, TNIG filed its third amended petition, in which it alleged, for the first time, claims against Associates for breach of contract, conversion, and exemplary damages arising out of the individual DOTPAs (the “Individual DOTPA Claims”). In particular, TNIG alleged that Associates breached the individual DOTPAs by failing to pay TNIG proceeds in excess of those to which Associates was entitled under the DOTPAs. Additionally, TNIG alleged that Associates converted funds owed to TNIG by continuing to collect and retain payments for notes and contracts for deed after Associates had collected all payments to which it was entitled under the terms of the DOTPAs. TNIG’s newly-asserted claims were essentially based on the theory that Associates violated the terms of the DOTPAs by failing to pay to TNIG: (1) all amounts in excess of Associates’ Guaranteed Yield for notes and contracts for deed that were paid off in full during Associates’ partial interest, (2) all amounts in excess of Associates’ Foreclosure Minimum for notes and contracts for deed involving a foreclosure sale, and (3) all monthly payments collected by Associates for paid-out accounts following the expiration of Associates’ partial interest. On June 24, 2011, the trial court held a hearing on Associates’ motion for summary judgment on the Global Agreement Claims. On July 8, 2011, the trial court entered an order denying that motion. On July 21, 2011, Associates sent a letter and check in the amount of $174,562.50 to TNIG. In the letter, Associates explained that the $174,562.50 represented all amounts being held by Grand in the Escrow Account for paid-off and paid-out accounts, plus interest on those amounts from the date each payment was received through July 22, 2011. It also explained that the $174,562.50 represented Associates’ tender of all amounts owed to TNIG for the Individual DOTPA Claims as of the date of the tender. TNIG received the tender letter and check on July 22, 2011, but ultimately returned the check to Associates on September 7, 2011, with a letter stating that TNIG had rejected Associates’ tender of funds. Thereafter, the trial court entered a docket control order setting the case for trial on January 23, 2012. At the docket call on January 20, 2012, the trial judge informed the parties that he had again reviewed Associates’ May 13, 2011 motion for summary judgment on the Global Agreement Claims, as well as TNIG’s response thereto, and had decided to grant the motion. Accordingly, on January 20, 2012, the trial judge signed an order granting summary judgment in favor of Associates on the Global Agreement Claims and stating that the only claims remaining in the lawsuit were TNIG’s “causes of action for conversion and breach of contract to recover any proceeds received and held by [Associates] in excess of [Associates’] entitlement under the individual [DOTPAs].” On January 23, 2012, the case was called to trial and a jury was impanelled. On January 25, 2012, .the third day of trial, the trial court declared a mistrial and dismissed the. jury. Additionally, the trial court ordered Associates to deposit the $174,562.50 that it had tendered to TNIG on July 21, 2011, into the registry of the court. The record indicates that Associates tendered the $174,562.50 into the registry of the court on February 2, 2012. On June 1, 2012, Associates filed a motion for partial summary judgment, asserting thát limitations barred a portion of TNIG’s remaining breach of contract and conversion claims. On July 10, 2012, the trial court signed an order granting in part and denying in part the June 1, 2012 partial summary judgment motion. On July 10, 2012, the case proceeded to trial before the bench. At trial, TNIG presented evidence in support of.its remaining breach of contract and conversion claims arising out of the, individual DOT-PAs for twenty-five notes and contracts for deed. At the close of evidence, the trial court requested briefing from the parties regarding TNIG’s right to recover attorney’s fees under section 38.002-of the Texas Civil Practice and Remedies Code. After both parties submitted trial briefs on the issue of TNIG’s attorney’s fees, the trial court entered an order on July 18, 2012, denying TNIG’s request for attorney’s fees under Texas Civil Practice & Remedies Code § 38.002. ■ On August 24, 2012, the trial court rendered its final judgment. The trial court’s judgment provided that TNIG was entitled to an award of damages against Associates in the aggregate amount of $131,876;85, inclusive of interest. However, the judgment' further provided that under Texas Rule of Civil Proceduré 167.4, Associatés was entitled to an award of litigation costs in the amount óf $66,938.42, which was to be applied as an offset against TNIG’s recovery. Accordingly, the trial court ordered that $65,938.43 be paid to TNIG as its net recovery on its claims against Associates and that $65,938.42 be paid to Associates for its litigation costs under Rule 167. The trial court ordered that both TNIG’s . net recovery and Associates’ award of litigation costs would be paid out of the funds tendered by Associates into the registry of the court. At TNIG’s request, the trial court entered findings of fact and conclusions of law. TNIG then timely filed its notice of appeal. III. Issues Presented TNIG presents three issues on appeal. In its first issue, TNIG argues that the trial court erred by awarding litigation costs to Associates under Texas Rule of Civil Procedure 167 because the Individual DOTPA- Claims had not been pled by TNIG at the time Associates made its settlement offer under' Rule 167 and, thus, were not claims by and against Associates, as required' to be included in a settlement offer under that rule. TNIG argues that because Associates’ settlement offer did not include the claims that ultimately formed the basis of the trial court’s judgment, Associates was not entitled to an award of litigation costs under Rule 167. In its second issue, TNIG argues .that the trial court erred in concluding that the letter and check sent by Associates to TNIG on July 21, 2011, constituted a valid tender of funds for the Individual DOTPA Claims, thereby precluding TNIG from recovering attorney’s fees under Chapter 38 of the Texas Civil Practice and Remedies Code and interest following the date of the tender. In its third issue, TNIG argues that the trial court erred in reconsidering and granting Associates’ May 13, 2011 motion for summary judgment on the Global Agreement Claims after previously denying such motion and failing to provide notice to TNIG that the motion would be reconsidered. . IV. Litigation Costs In its first point of error, TNIG argues that the trial court erred by awarding litigation costs to Associates under Texas Rule of Civil Procedure 167. Specifically, TNIG argues that the language of Rule 167 limits the claims that may be included in a settlement offer under that rule to claims that have been formally pled at the time the settlement offer is made. TNIG contends that because it had not yet pled the Individual DOTPA Claims at the time Associates made its settlement' offer under Rule 167, the settlement offer could not and did not include those claims. TNIG argues that because Associates’ settlement offer did not include the claims that ultimately formed the basis of the trial court’s judgment, Associates was not entitled to an award of litigation costs under Rule 167. Chapter 42 of the Texas Ciyil Practice and Remedies Code governs the award of litigation costs against a party who rejects an offer of séttlement made in accordance with its provisions. See Tex. Civ. Prac. & Rem. Code Ann. §§ 42.001-.005 (West 2015). Under Chapter 42, if a settlement offer is made and rejected, and the judgment ultimately proves to be significantly less favorable to the rejecting party than the settlement offer, then the offering party shall recover litigation costs from the rejecting party from the time the offer was rejected to the time of judgment. Id. § 42.004(a), (c). The purpose of the offer of settlement mechanism set forth in Chapter 42 is to reduce the cost-of litigation in certain cases by providing an incentive for litigants to make and accept reasonable settlement offers early in the litigation process. In re CompleteRX, Ltd., 366 S.W.3d 318, 321-22 (Tex.App.Tyler 2012, orig. proceeding); see also Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 513 (Tex.2014) (noting that “Texas has a public policy preference for the settlement.of legal disputes” and that “chapter 42 and rule 167 encourage such settlements”). When the Legislature created the offer of settlement mechanism in Chapter 42, it directed the Texas Supreme Court to promulgate rules providing the procedural details for its implementation. See Tex. Civ. Prac. &. Rem. Code Ann. § 42.005. In response, the Court adopted Texas Rule of Civil Procedure 167. See Tex. R. Civ. P. 167.1-.7; CompleteRX, 366 S.W.3d at 322. Rule 167.2(a) specifies how the settlement offer provision is to be invoked: (a) Defendant’s• declaration a prerequisite; deadline. A settlement offer under this rule may not be made until a defendant — a party against whom a claim for monetary damages is- made— files a declaration invoking this rule. When a defendant files such a declaration, an offer or offers may be made under, this. rule to settle only those claims by and against that defendant. The declaration must be filed no later than 45 days before the case is set for conventional trial on the merits. Tex. R. Civ. P. 167.2(a). Rule 167.2(b), in turn, sets forth the requirements with which a settlement offer made under the rule must comply: (b) Requirements of an offer. A settlement offer must: (1) be in writing; (2) state that it is made under Rule 167 and Chapter 42 of the Texas Civil Practice and Remedies Code; (3) identify the party or parties making the offer arid the party or parties to whom the offer is made; ! (4) state the terms by which all monetary claims — including any attorney fees, interest, and costs that would be recoverable up to the time of the offer — between the offeror or offerors on the one hand ánd the offeree or offerees on the other may be settled; (5) state a deadline — no sooner than 14 days after, the offer is served — by which the offer must be accepted; (6),be .served on all parties to whom the offer is made. Id. 167.2(b). Similar to Chapter 42, Rule 167.4(a) provides that if a settlement offer made under the rule “is rejected, and the judgment to be awarded on the monetary claims covered by the offer is significantly less favorable to the offeree than was the offer, the court must award - the offeror litigation costs against the offeree from the time the offer was rejected to the time of judgment.” . Id.. 167.4(a). Rule 167.4(b) states that “[a] judgment award on monetary claims is significantly less favorable than an offer to settle those claims if: (1) the offeree is a claimant and the judgment would be less than 80 percent of the offer; or (2) the offeree is a defendant and the judgment would be more than 120 percent of the offer.” Id. ■ 167.4(b). Litigation costs awarded to a defendant under Rule 167 “must be made a setoff to the claimant’s judgment against the defendant.” Id. 167.4(g). TNIG argues that at the time Associates made its settlement offer on June 10, 2011, TNIG had not yet filed its third amended petition adding the Individual DOTPA Claims. Rather, TNIG points out, the live pleading on file for TNIG at the time the settlement offer was made was TNIG’s second amended petition, which included only the Global Agreement Claims. TNIG argues that because the Individual DOTPA Claims were not formally pled by TNIG until June 22, 2011 — twelve days after Associates made its Rule 167 settlement offer — the Individual DOTPA Claims were not “claims by and against” Associates at the time the settlement offer was made and thus could not, as a matter of law, be included in the settlement offer under the express language of Rule 167.2(a). Essentially, TNIG argues that the phrase “claims by and against that defendant;” as used in Rule 167.2(a), means only those claims that have been formally pled by and against the defendant at the time the settlement offer is made. Associates, on the other hand, argues that nothing in the language of Rule 167 requires claims to be expressly pled in the parties’ pleadings in order to constitute “claims by and against that defendant” under Rule 167.2(a). Instead, Associates contends that the phrase “claims by and against that defendant” was intended to include both pled and unpled claims. Associates argues that any other interpretation would frustrate the intent behind the rule. The resolution of this issue requires us to interpret Rule 167.2(a). The construction of a procedural rule is a question of law that is subject to de novo review. See Thomas v. Olympus/Nelson Prop. Mgmt., 148 S.W.3d 395, 399 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We apply the same rules of construction to procedural rules that we apply to the interpretation of statutes. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex.2012). In construing a rule of procedure, our primary -objective is to determine and give effect to the rule’s intent. See Thomas, 148 S.W.3d at 399. To accomplish this goal, “[w]e first look to the plain language of the rule[.]” Ford Motor Co., 363 S.W.3d at 579. We must examine the rule as'a whole, giving effect to every word, clause, and sentence. See Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 354 (Tex.2013). If the rule’s language is clear and unambiguous, we interpret the rule according to its plain meaning unless a different meaning is apparent from the context or the plain meaning would lead to absurd results. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex.2007); Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 449 S.W.3d 154, 162 (Tex.App.-Austin 2014, pet. filed). Further, the Texas Code Construction Act applies to the construction of procedural rules and, among other things, permits our consideration of the object sought to be attained by the rule, the circumstances under which the rule was enacted, and the consequences of a particular construction of the rule, regardless of whether the rule is ambiguous. See Tex. Gov’t Code Ann. §§ 311.002(4), 311.023(1)-(2), (5) (West 2013); see also Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 160 (Tex.2011); In re Walkup, 122 S.W.3d 215, 217 (Tex.App.-Houston [1st Dist.] 2003, no pet.). We are also guided by the mandate of Rule 1, which requires us to liberally construe the Texas Rules of Civil Procedure to obtain a “just, fair, equitable!,] and impartial adjudication of the rights of litigants under established principles of substantive law” with “as great expedition and dispatch and at the least expense both to the litigants and to the state as may be praeticable[.]” Tex.R. Civ. P. 1. Based on the foregoing rules of construction, we begin our analysis by examining the plain language of the rule. See Ford Motor Co., 363 S.W.3d at 579. As both parties note, Rule 167.2(a) expressly limits the types of claims that may be included in a settlement offer under Rule 167 to “claims by and against that defendant.” Tex. R. Civ. P. 167.2(a). Rule 167 does not define the term “claims.” See Tex.R. Civ. P. 167. Chapter 42, however, defines a “ ‘[c]laim’ ” as “a request, including a counterclaim, cross-claim, or third-party claim, to recover monetary damages.” Tex. Civ. Prac. & Rem. Code Ann. § 42.001(1). Because Rule 167 was adopted for the specific purpose of implementing the offer of settlement procedure set forth in Chapter 42, we find Chapter 42’s definition of the term “claim” to be directly applicable here. See Tex. Gov’t Code Ann. '§ 311.011(b) (West 2013) (“Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”). Nothing in Chapter 42’s definition of the term “‘[c]laim’” requires a request for monetary damages — whether it be a counterclaim, cross-claim, third-party claim, or otherwise — to be expressly pled in a party’s pleadings at the time the settlement offer is made in order to constitute a “‘[c]laim.’” See Tex. Civ. Prac. & Rem. Code Ann. § 42.001(1). To the contrary, the definition unambiguously encompasses any request to recover monetary' damages, regardless of whether such request is contained in a party’s pleadings. See id. The words “by” and “against” are also not defined by Rule 167, nor are they defined by Chapter 42. See Tex. Civ. Prac. & Rem. Code Ann. §§ 42.001-.005; Tex. R. Civ. P. 167.1-.7. Therefore, we construe those words in accordance with their ordinary and commonly understood meanings. See Indem. Ins. Co. v. City of Garland, 258 S.W.3d 262, 269 (Tex.App.-Dallas 2008, no pet.). The ordinary meaning of the word “by” is “through or through the medium of[.]” By, Webster’s Ninth New Collegiate Dictionary (1988). The word “against” means “in opposition or hostility to[.]” Against, Webster’s Ninth New Collegiate Dictionary (1988). Thus, whén we construe those words according to their commonly accepted definitions, we find that claims are “by” a defendant if they are simply “through” that defendant and claims are “against” a defendant if they are “in opposition to” that defendant. We also note that the word “that,” as used in the phrase “claims by and against that defendant!,]” is used grammatically as a determiner, which is a word, such as “this,” “that,” “these,” and “those,” that “determines the use of a noun without actually modifying it.” See Random House Webster’s Grahimar, Usage, and'Punctuation 66 (2068). When used as a determiner, “that” commonly means the particular “person, tiling, or idea indicated, mentioned, or understood from the situation!.]” That, Webster’s Ninth New Collegiate Dictionary (1988). Here, the word “that” determines the use of the word “defendant.” See Tex. R.' Civ. P. 167.2(a). The only other references to the term “defendant” in Rule 167.2(a) are to the particular defendant that has filed the declaration invoking Rule 167. Id. Thus, when read contextually and in accordance with applicable grammatical rules, “that defendant” as used in Rule 167.2(a), unambiguously refers to the specific defendant that filed the declaration invoking Rule 167. See Tex. R. Civ. P. 167.2(a); see also Tex. Gov’t Code Ann. § 311.011(a). We conclude that the phrase “claims by and against that defendant” in Rule 167.2(a) is clear.and unambiguous and, according to its plain language, limits the. claims that may be included in a settlement offer under Rule 167 to (1) requests to recover monetary damages that are by (i.e., “through”) the defendant that filed the declaration invoking Rule 167, and (2) requests to recover monetary damages that are against (i.e., “in opposition to”) the defendant that filed the declaration invoking Rule 167. See Tex. R. . Civ. P. 167.2(a). Contrary to TNIG’s argument, nothing in the plain language of the-rule indicates that a claim must be formally pled when the settlement offer is made in order to be included in a settlement offer under the rule, and we decline to read any such requirement into those words when, as, here, there, is no indication in the language of the rule or otherwise that the Texas Supreme Court intended,that we do so. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex.1999) (explaining that a court may not add words into a rule or statute unless truly extraordinary circumstances exist showing an unmistakable intent by the enacting body); Young v. McKim, 373 S.W.3d 776, 781 (Tex.App.-Houston [14th Dist.] 2012, pet. denied) (concluding that when construing a statute, a court should “presume -words excluded from the statute were excluded purposefully”). Other provisions of Rule 167 support this interpretation. Specifically, Rule 167.2(d) identifies the types of claims that may not be included in a settlement offer under Rule 167. See Tex. R. Civ. P. 167.2(d). Rule 167.2(d) provides: “An offer must not include non-monetary claims and other claims to which this rule does not apply.” Id. Rule 167.1, in turn, sets forth a list of claims to which Rule 167 does not apply, including claims in (a) class actions, (b) shareholder derivative actions, (c) actions by or against the State, a unit of state government, or a political subdivision of the State, (d) actions brought under the Family Code, (e) actions to collect workers’ compensation benefits under title 5, subtitle A of the Labor Code, and (f) actions filed in justice of the peace courts or small claims courts. See Tex. R. Civ. P. 167.1. Noticeably absent from both of these provisions are claims that have not been formally pled at the time the settlement offer is made. See Tex. R. Civ. P. 167.1,167.2(d). Further, we find that the language of Chapter 42 supports our interpretation of Rule 167.2(a); Section 42.002, which governs the applicability and effect of the offer of settlement statute, states in relevant part: (c) This chapter does not apply until a defendant files a declaration that the settlement procedure allowed by this chapter is available in the action. If there is more than one defendant, the settlement procedure allowed by this chapter is available only in relation to the defendant that filed the declaration and to the parties that make or receive offers of settlement in relation to that defendant. Tex. Civ. Prac. & Rem, Code Ann. § 42.002(c) (emphasis added). Moreover, section 42.005, which directs the Texas Supreme Court to promulgate rules implementing the offer of settlement procedures set forth in Chapter 42, states that “[t]he rules promulgated by the supreme court must address actions in which there are multiple parties[.]” Id. §■ 42.005(c). Rule 167.2(a), which was promulgated in accordance with the directives set forth in section 42.005, largely follows the format and substance of section 42.002(c). See Tex. R. Civ. P. 167.2(a); see also Tex. Civ. Prac. & Rem. Code Ann. § 42.002(c). . By contrast, we find nothing in the language of Chapter 42 suggesting that the intended purpose of the phrase “claims by and against that defendant” is, as TNIG contends, to limit the claims that may be included in a settlement offer to those that have been specifically pled by and against a defendant at the time the settlement offer has been made. Thus, the language of Chapter 42 reinforces the conclusion that the intended purpose of the phrase “claims by and against that defendant” in Rule 167.2(a) is to limit the claims that may be included in a settlement offer to claims pertaining to the specific defendant that filed the declaration invoking Rule 167, and not, as TNIG suggests, to limit the claims in a settlement offer to those that have been formally pled at the time the settlement offer is made. TNIG argues that the language of Rule 167.2(b)(4) supports its interpretation that a settlement offer under Rule 167 may only include claims that have been pled by or against a defendant at the time' the settlement offer is made. Rule 167.2(b)(4) states that a settlement offer must “state the terms by which all monetary claims— including any attorney fees, interest, and costs that would be recoverable up to the time of the offer — between the offeror or offerors on the one hand and the offeree or offerees on the other may be settled[.]” Tex. R. Civ. P. 167.2(b)(4). TNIG argues that the phrase “that would be recoverable up. to the time of the offer” in Rule 167.2(b)(4) indicates that “the only thing the [defendant can try to settle in a suit where it has invoked [Rule] 167 is a monetary claim that would have been recoverable by [the] plaintiff at the time of the offer.” TNIG’s argument necessarily assumes that the phrase “that would be recoverable up to the time of the offer” in Rule .167.2(b)(4) modifies the term' “all monetary claims[.]” We disagree with that assumption. ■' The language on which TNIG relies— “that would be recoverable up to the time of the offer” — is part of the larger phrase “including any attorney fees, interest, and costs that would be recoverable up to the time of the. offer.” Tex. R. Civ. P. 167.2(b)(4). the word “ ‘including[,]’ ” which is a term of enlargement and not limitation, typically introduces a non-exhaustive list of components that are part of a larger whole, See Tex. Gov’t Code Ann. § 311.005(13) (West 2013). As used in Rule 167.2(b)(4), the word “including” introduces a non-exhaustive list of categories of monetary claims — “attorney fees, interest, and costs” — that are part of a larger whole — “all monetary claims[.]” See Tex. R. Civ. P,' 167.2(b)(4). This non-exhaustive list is syntactically separated from the rest of the sentence, including the phrase “all monetary claims[,]” by dashes. Id. The phrase “that would be recoverable up to the' time of the offer” immediately follows the words “attorney fees, interest, and costs[]” and is likewise included in the portion of the sentence that is set off by dashes. Id. As used in Rule 167.2(b)(4), the phrase “that would be recoverable up to the time of the offer” is an adjective clause, which, by definition, modifies a noun or pronoun. See id.; Random House Webster’s GRAMMAR, Usage, and Punctuation at 97. It is a general rule of grammar that modifying words or phrases are presumed to apply to the words or phrases that immediately precede them and not to those more remote. See Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 184 (Tex.2012) (‘“Modifiers should come, if possible, next to the words they modify.’” (quoting William Strunk, Jr. & E.B. White, The Elements op Style R. 30 (4th ed.2000))); see also Beyan A. GARNER, GarneR’s Modern AmeRican Usage 540 (3d ed.2009) (noting that “[w]hen modifying words are separated from the words they modify, readers have a hard time processing the information” and that “the true referent should generally be the closest appropriate word[.]”); H. Ramsey FowleR, The Little, Brown Handbook 147 (2d ed. 1983) (“Adjective clauses ordinarily fall immediately after the noiin or pronoun they modify.”). This rule is related to the last antecedent doctrine of statutory interpretation, which provides that “a qualifying phrase should be applied only to the portion of the sentence ‘immediately preceding it.’” Williams, 371 S.W.3d at 185 (quoting City of Dallas v. Stewart, 361 S.W.3d 562, 571 n. 14 (Tex.2012)). Applying this rule, the clause “that would be recoverable up to the time of the offer” modifies only the words immediately preceding it — “attorney fees, interest, and costs” — and not the more remote phrase “all monetary claims.” See Tex. R. Civ. P. 167.2(b)(4). This interpretation is supported by the location of the dashes in the sentence, which effectively limit the reach of the modifying clause “that would be recoverable up to the time of the offer” to the words “attorney fees, interests, and costs,” which, like the modifying clause, are located within the part of the sentence set off by the dashes. See id. Rule 167.2(b)(4), therefore, does not support TNIG’s construction of Rule 167.2(a). Having concluded that Rule 167.2(a) does not prohibit a settlement offer from including unpled claims, we now examine whether the trial court correctly concluded that Associates’ settlement offer under Rule 167 included the Individual DOTPA Claims that ultimately formed the basis of the trial court’s judgment. The record reflects that Associates attached a copy of its June 10, 2011 settlement offer as an exhibit to its motion for litigation costs under Rule 167. The settlement offer states, in relevant part, as follows: Defendant [Associates] has submitted to the Court a Declaration of Settlement Offer regarding Associates’ intent to submit to Plaintiff [TNIG] an offer of settlement pursuant to Rule 167 of the Texas Rules of Civil Procedure. This letter constitutes that offer. This offer is being made pursuant to Rule 167 of the Texas Rules of Civil Procedure and Chapter 42 of the Texas Civil Practice & Remedies Code. This offer is being made on behalf of Associates and being made to TNIG. Associates hereby offers to pay to TNIG the aggregate sum of $350,000.00 (the “Settlement Sum”) in full and complete satisfaction of all monetary claims of TNIG against Associates, including claims for attorney’s fees, costs and interests [sic], if any, that would be recoverable up to the date hereof. Pursuant to Rule 167.2(c), the only conditions to such offer are (1) a dismissal of the claims asserted by TNIG against Associates with prejudice, (2) a release by TNIG of Associates, its employees, agents, officers, directors, and representatives, including any servicer acting on behalf of Associates, from any and all claims asserted or assertable by TNIG in the pending lawsuit or which pertain in any way to any of the contracts for deed, mortgages, and transactions which are the subject of the pending lawsuit [,] and (3) TNIG’s agreement to indemnify Associates and its representatives, including any servicer acting on behalf of Associates, from any loss, injury, damage, or cost (including attorney’s fees) suffered or incurred in connection ■with any claim by any seller to TNIG of any of the contracts for deed or mortgages which are the subject of the pending lawsuit. (Emphasis added). The settlement offer expressly states that it applies to “all monetary claims of TNIG against Associates[.]” It further states that it is conditioned upon a dismissal of “the claims asserted by TNIG against Associates” and TNIG’s execution of a release of Associates “from any and all claims asserted or assertable by TNIG in the pending lawsuit or which pertain in any way to any of the contracts for deed, mortgages, and transactions which are the subject of the pending lawsuit[.]” TNIG does not contend, and we do not find, that Associates’ settlement offer under Rule 167 is ambiguous. “The construction of an unambiguous writing is a question of law.” Ins. Corp. of Am. v. Webster, 906 S.W.2d 77, 80-81 (Tex.App.-Houston [1st Dist.] 1995, writ denied). When a writing is unambiguous, effect will be given to the objective intention of the party or parties as expressed within the writing. Boyd v. Am. Bank of Commerce at Wolfforth, 872 S.W.2d 29, 31 (Tex.App.Amarillo 1994, writ dism’d by agr.). In Amedisys, Inc., -the Texas Supreme Court analyzed the language of a settlement offer made under Rule 167 to determine, inter alia, whether the offer was intended to include claims that had not yet been asserted. 437 S.W.3d at 515.. In that ease, the defendant sent the plaintiff a settlement offer under Rule 167, which stated in relevant part: Please accept this letter as an offer of settlement regarding the above referenced matter. Specifically, my client, [Kingwood] makes this offer to pay your client, [Amedisys] to settle all monetary claims between the parties in accordance with Texas Civil Practice &' Remedies Code Chapter 42 and Texas Rule of Civil Procedure 167. [Kingwood] offers to settle with Amedi-sys the following claims in accordance with Texas Civil Practice & Remedies Code Chapter 42 and Texas Rule of Civil Procedure 167: [Kingwood] offers a total sum of $90,000 to settle all claims .asserted or which could have been asserted by Amedisys against [Kingwood] in the above referenced case. This full and final offer is for all monetary damages claimed — including attorney[’]s fees, costs and interest that were recoverable as of the date of this offer by [Kingwood]. A lump-sum payment in the amount of $90,000 will be made by [Kingwood] within fifteen (15) days after acceptance. If your client agrees, please indicate so by affixing your signature below and returning to me. Id. at 514-15. One of the questions before the Court was whether the defendant’s settlement offer was intended to settle all claims between the plaintiff and the defendant, including claims that had not yet been asserted, or whether it was only intended to settle the claims that had:been asserted by the parties. Id. at 514-17. After analyzing the language of the settlement offer, the Court concluded that the offer was intended to settle all claims between the plaintiff and the defendant, including claims that had not yet been asserted. Id. at' 515. In reaching this conclusion, the Court first noted that the defendant’s settlement offer was itself internally inconsistent in its descriptions of the claims that the defendant was offering to settle. Id. It observed that the settlement offer initially offered to settle “⅛11 monetary claims between the parties,”’ which omitted any explicit reference to claims that could have been asserted, Id. It then described the claims as “‘all claims asserted or which could have been asserted,’” which clearly included claims not yet asserted. Id. But it subsequently stated that “ ‘the offer is for all monetary damages asserted,’ ” . omitting any reference to damages not asserted. Id. Despite these inconsistencies, the Court concluded that, based on the second description of “ ‘all claims asserted or which could have been asserted,’” the settlement offer was intended to settle all claims, including any claims that had not been' asserted. Id. In doing so, it interpreted the first and third descriptions (“ ‘claims between the parties’ ” and “ ‘damages asserted’ ”) as ' shorthand references to- the second description. Id. We find the Court’s analysis of the settlement offer in Amedisys to be instructive here. Similar to the settlement offer in Amedisys, Associates’ settlement offer initially offers to settle “all monetary claims of TNIG against Associates!.]” Although this description omits any-explicit reference to claims that could have been asserted by TNIG, nothing in-'- that language excludes such claims. To the contrary, we find that the broad phrase “all monetary claims of TNIG against Associates! ]” can reasonably be interpreted to include both asserted and unasserted monetary claims by TNIG against Associates, In the next sentence, Associates’ settlement offer requests a dismissal of “the claims asserted by TNIG against Associates!,]” but this language is not determinative of the issue since there would be no need for the court to enter a dismissal of claims that had not been asserted. The settlement offer then requests TNIG, as part of the proposed settlement, to release Associates from “any and all claims asserted or assertable by TNIG in the pending lawsuit or which pertain in any way to any of the contracts for deed, mortgages, and transactions which are the subject of the pending lawsuit!.]” This third description clearly includes claims that have actually been, asserted by TNIG and claims that are “assertable” — that is, claims that have not. been, but could be, asserted — by TNIG in the pending lawsuit. It also expressly includes claims by TNIG that pertain in any -\vay to any of the contracts for deed, mortgages, and transactions that are the subject of the pending lawsuit. This description (“any and all claims asserted or assertable by TNIG in the pending lawsuit or which pertain in any way to any of the contracts for deed, mortgages, and transactions which are the. subject of the pending lawsuit”) is the most detailed description of the claims that Associates was offering to settle. Based on this description, we conclude that Associates’ settlement offer was intended to. settle all monetary claims by TNIG against Associates, including (i) claims that were actually asserted by TNIG in the pending lawsuit, (ii) claims that could have been asserted by TNIG in the pending lawsuit, and (iii) all claims pertaining in any way to the contracts for deed, mortgages, and transactions that are the subject of the pending lawsuit. , See Amedisys, 437, S.W.3d at 515. • TNIG’s third amended petition reflects that the Individual DOTPA Claims are claims by TNIG for monetary relief against Associates. Although TNIG had not yet asserted the Individual DOTPA Claims in its pleadings when Associates made its settlement offer under Rule 167, the' record establishes that each of the Individual DOTPA Claims- that forms the basis of the trial courts judgment constituted a claim that pertained to the contracts for deed, mortgages, and transactions that were the subject of TNIG’s Global Agreement Claims or that otherwise could have been asserted by TNIG in the pending lawsuit at the time the settlement offer was made. See Tex. R. Civ. P. 51(a) (“The plaintiff in his petition ... may join either as independent or as alternate claims as many claims either legal or equitable or both as he may . have against an opposing party.”). Accordingly, we conclude that Associates’ June 10, 2011 settlement offer under Rule 167 included each of the Individual DOTPA Claims that form the basis of the trial court’s judgment. We overrule TNIG’s first issue. Y. Validity of the Tender In its second point of error, TNIG argues that the trial court erred by concluding that the letter and check that Associates sent to TNIG on July 21, 2011,, constituted a valid tender with respect to the Individual DOTPA Claims, thereby precluding TNIG from recovering attorney’s fees under Chapter 38 of the Texas Civil Practice and Remedies Code and from recovering interest accruing after the date of the tender. Specifically, TNIG argues that: (1) the tender .was not made within the thirty-day period following TNIG’s presentment of its claim, (2) the tender was-conditional, and (3) the tender was not for -the correct amount owed. Thus, TNIG contends, Associates’purported tender did not operate to cut off TNIG’s right to attorney’s fees and interest for the Individual DOTPA Claims, and the trial court’s denial of attorney’s fees and interest accrued after the date of the tender should be reversed. Before we reach the merits of TNIG’s arguments under its second point of error, we note that Texas Rule of Civil Procedure 167.4(f) states that “[a] party against whom litigation costs are awarded may not recover attorney fees and costs under another law incurred after the date the party rejected the settlement offer made the basis of the award.” Tex. R. Civ. P. 167.4(f). Here, the record reflects that TNIG rejected Associates’ settlement offer under Rule 167 when TNIG failed to accept the offer by June 27, 2011 — the deadline given for TNIG to accept the offer. See Tex. R. Civ. P. 167.3(c). Because the trial court concluded that Associates was entitled to an award of litigation costs against TNIG under Rule 167 and because we have resolved each of TNIG’s challenges to that award against it on appeal, Rule 167.4(f) precludes TNIG from recovering, under Chapter 38 or' otherwise, any attorney’s fees that it incurred in this case after June 27, 2011. See id. 167.4(f). However, because TNIG challenges the trial court’s denial of all attorney’s fees and interest it incurred in connection with its claims for breach of the individual DOTPAs, and not just the attorney’s fees it incurred after the date that it rejected Associates’ Rule 167 settlement offer, we address the arguments made by TNIG in its second point of error. Section 38.001 of the Texas Civil Practice and Remedies Code permits a party to “recover reasonable attorney’s fees ... in addition to the amount of a valid claim and costs, if the claim is for ... an oral or written contract.” Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2015). To recover attorney’s fees under that section: “(1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered before the éxjpiration of the 30th day after the claim is presented.” Id. § 38.002. As a general rule, the party seeking to, recover attorney’s fees carries the burden of proof to show its entitlement to the fees. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex.2009). “If attorney’s fees are proper under section 38.001(8), the trial court has no discretion to deny them.” Id. A proper tender of the just amount owed is a defense to a claim for attorney’s fees under Chapter 38. See Staff Indus., Inc. v. Hallmark Contracting, Inc., 846 S.W.2d 542, 548 (Tex.App.Corpus Christi 1993, no writ). It is also a defense to a claim for interest on the obligation accruing after the tender. Id. at 549. If the defendant tenders payment for the full amount owed, and the plaintiff refuses to accept it and proceeds to trial, the defendant is not liable for the plaintiffs attorney’s fees and subsequent interest. Thomas v. Thomas, 917 S.W.2d 425, 438 (Tex.App.-Waco 1996, no writ); Staff Indus., 846 S.W.2d at 548. A. Timeliness of the Tender TNIG first argues, that Associates’ July 21, 2011 tender did not constitute a valid tender of funds because the tender was not made within thirty days following the presentment by TNIG of its claims for breach of the individual DOTPAs. Specifically, TNIG argues that presentiment of its claims for breach of the indiviclual DOT-PAs can'lie traced back to 2008 when TNIG propounded, and Associates served its answers t