Kerstin Jones v. Roderick Darryl Jones ( 2014 )

NUMBER 13-14-00294-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KERSTIN JONES, Appellant,
v.
RODERICK DARRYL JONES, Appellee.
On Appeal from the 267th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion Per Curiam
Appellant, Kerstin Jones, proceeding pro se, appealed a decree of divorce entered
on March 26, 2014. However, according to our review of a supplemental clerk’s record
filed in this cause, intervenor Urquhart Law Firm P.L.L.C. (“Urquhart”) timely filed a motion
to modify the judgment and, alternatively, for new trial on April 25, 2014. Urquhart
contended that the divorce decree should be modified or a new trial granted because the
final decree of divorce purported to dispose of real property that Urquhart owned. By (a)
letter ruling dated and filed on July 8, 2014, the trial court granted Urquhart’s motion for
new trial:
Pending is the intervention/motion to modify/motion for new trial filed
by the Urquhart Law Firm in the above-captioned matter. By my
calculations, the court's plenary power ends tomorrow. After review of the
file and the arguments of counsel, I find that there is some basis to the
argument that the acreage in dispute should not have been included in the
decree of divorce. However, I do not have enough information to
determine if removing the acreage from the decree would affect the existing
property division. There is also the claim that the land was fraudulently
conveyed or that the conveyance was in violation of a prior injunction.
Accordingly, in the interest of justice, I am granting a new trial as to
the entire case and it is so Ordered. Please forward a copy of this order to
counsel of record and Ms. Jones. Please also forward a copy of this order
to the Court of Appeals.
On July 29, 2014, the trial court entered an “Order Confirming Order Granting New Trial,”
stating that it “is hereby ORDERED that this court's order of July 8, 2014 is the order
granting a new trial and said order is incorporated herein by reference.”
The trial court retains jurisdiction over a case for a minimum of thirty days after a
final judgment, during which time the court has plenary power to change its judgment.
See TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d
308, 310 (Tex. 2000). Here, the motion for new trial was timely filed and extended the
trial court’s plenary power for an additional seventy-five days. See TEX. R. CIV. P.
329b(a),(c),(e),(g). When a motion for new trial is timely filed, the trial court has plenary
power to vacate, modify, correct, or reform the judgment until thirty days after the motion
is overruled, either by a written order or by operation of law, whichever comes first. See
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TEX. R. CIV. P. 329b(e); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). Thus, the
court’s plenary power may ultimately be extended 105 days after the judgment was
signed. Lane Bank Equip. Co., 10 S.W.3d at 310. In this case, the trial court’s period
of plenary power expired on July 9, 2014. The trial court granted the motion for new trial
by letter ruling on July 8, 2014, which was within this extended period of time; however,
the trial court’s formal order, signed on July 29, 2014, was not signed within the trial
court’s plenary jurisdiction.
In general, a letter from the trial court to counsel is typically not the type of
document that constitutes a judgment, decision, or order. See Goff v. Tuchscherer, 627
S.W.2d 397, 398–99 (Tex. 1982); In re CAS Cos., 422 S.W.3d 871, 874 (Tex. App.—
Corpus Christi 2014, orig. proceeding); Perdue v. Patten Corp., 142 S.W.3d 596, 603
(Tex. App.—Austin 2004, no pet.). However, a letter may constitute an order if it
substantially complies with the requisites of a formal order. See In re CAS Cos., 422
S.W.3d at 875; In re Newby, 266 S.W.3d 557, 558–59 (Tex. App.—Amarillo 2008, orig.
proceeding); Schaeffer Homes, Inc. v. Esterak, 792 S.W.2d 567, 569 (Tex. App.—El Paso
1990, no writ). Specifically, a letter may constitute an order if: (1) it describes the
decision with certainty as to parties and effect; (2) it requires no further action to
memorialize the ruling; (3) it contains the name and cause number of the case; (4) the
court's diction is affirmative rather than anticipatory of a future ruling; (5) it bears a date;
(6) it was signed by the court; and (7) it was filed with the district clerk. See In re CAS
Cos., 422 S.W.3d at 875; In re Newby, 266 S.W.3d at 558–59; Barron v. Vanier, 190
S.W.3d 841, 846 (Tex. App.—Fort Worth 2006, no pet.); Schaeffer Homes, Inc., 792
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S.W.2d at 569. In examining these factors, we focus on whether the trial court intended
the letter to serve as an order. In re CAS Cos., 422 S.W.3d at 875; Gen. Elec. Capital
Auto Fin. Leasing Servs., Inc. v. Stanfield, 71 S.W.3d 351, 355 (Tex. App.—Tyler 2001,
no pet.).
In this case, the trial court’s July 8, 2014 letter ruling substantially complies with
the requisites of a formal order. The letter describes the decision to grant a new trial with
certainty as to parties and effect; it requires no further action to memorialize the ruling; it
contains the name and cause number of the case; the diction is affirmative rather than
anticipatory of a future ruling; it bears a date; it was signed by the court; and it was filed
with the district clerk. See In re CAS Cos., 422 S.W.3d at 875; In re Newby, 266 S.W.3d
at 558–59; Barron, 190 S.W.3d at 846; Schaeffer Homes, Inc., 792 S.W.2d at 569.
Further, as evidenced by the trial court’s subsequent order, the trial court intended the
letter to serve as an order. See In re CAS Cos., 422 S.W.3d at 875; Gen. Elec. Capital
Auto Fin. Leasing Servs., 71 S.W.3d at 355.
Accordingly, the trial court granted a new trial in this matter on July 8, 2014. As a
general rule, an order granting a new trial is an interlocutory order that is not reviewable
on direct appeal from the order or from a final judgment. See Wilkins v. Methodist Health
Care Sys., 160 S.W.3d 559, 563 (Tex. 2005) (“Except in very limited circumstances, an
order granting a motion for new trial rendered within the period of the trial court's plenary
power is not reviewable on appeal.”); Cummins v. Paisan Constr. Co., 682 S.W.2d 235,
236 (Tex. 1984). On August 6, 2014, the Clerk of this Court notified appellant that the
record before the Court contained no appealable order, and requested correction of this
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defect, if it could be done. The Clerk further advised appellant that the appeal would be
dismissed for want of jurisdiction if the defect was not corrected within ten days from the
date of receipt of this notice. See TEX. R. APP. P. 42.3(a),(c). Appellant has not
corrected this defect, and we conclude that we lack jurisdiction over this appeal. The
appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P.
42.3(a). All pending motions are likewise DISMISSED.
PER CURIAM
Delivered and filed the
11th day of September, 2014.
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