Jill Kathryn Arno Peterson v. Donald Jonathan Peterson

• Court: Court of Appeals of Texas
• Decided: March 28, 2019
• Docket: 01-18-01022-CV
• Status: Published

Opinion

Opinion issued March 28, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-01022-CV ——————————— JILL KATHRYN ARNO PETERSON, Appellant V. DONALD JONATHAN PETERSON, Appellee

On Appeal from the 280th District Court Harris County, Texas Trial Court Case No. 2018-43305

MEMORANDUM OPINION

Appellant Jill Kathryn Arno Peterson attempts to appeal from an order

granting an amended motion to vacate a protective order for a new trial. We dismiss.

The protective order signed August 27, 2018 was a final, appealable

judgment. See TEX. FAM. CODE § 81.009. The trial court issued an order granting a new trial on November 9, 2018, which was within its plenary power. See TEX. R.

CIV. P. 329b(e) (trial court has plenary power to grant new trial until 30 days after

all timely-filed post-judgment motions are overruled by written and signed order or

by operation of law 75 days after judgment was signed).

The court notified appellant that it might dismiss the appeal for lack of

jurisdiction because orders granting new trials are interlocutory and not appealable.

See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). Only two

circumstances could support appeal of an order granting a new trial: “(1) when the

trial court’s order was wholly void; and (2) when the trial court erroneously

concluded that the jury’s answers to special issues were irreconcilably in conflict.”

In re Wyatt Field Serv. Co., 454 S.W.3d 145, 149 (Tex. App.—Houston [14th Dist.]

2014, orig. proceeding). Appellant responded that the order was appealable because

it was void; however, appellant has failed to establish that the trial court’s order is

void.

Accordingly, we dismiss the appeal for lack of jurisdiction. Any pending

motions are dismissed as moot.

PER CURIAM Panel consists of Justices Lloyd, Kelly, and Hightower.