Joe Alfred Izen Jr. v. Dawn Korman

• Court: Court of Appeals of Texas
• Decided: October 28, 2021
• Docket: 09-21-00276-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00276-CV __________________

JOE ALFRED IZEN JR., Appellant

V.

DAWN KORMAN, Appellee

__________________________________________________________________

On Appeal from the County Court at Law No. 2 Montgomery County, Texas Trial Cause No. 21-32095 __________________________________________________________________

MEMORANDUM OPINION

In October 2021, the Court sent the appellant, Joe Alfred Izen Jr., a letter

asking him to explain why his appeal should not be dismissed as moot based on the

order the trial court signed on September 16, 2021 granting Izen’s motion for new

trial in trial cause number 21-32095. Izen responded to the Court’s letter. In his

response, Izen argues that if the trial court no longer had plenary power over its order

dismissing his case as of September 16, his appeal (theoretically) would not be moot.

1 Even so, Izen has not argued the trial court did not have plenary power over the order

of dismissal. Instead, his argument is that if it did not, his appeal would not be moot.

Izen asks that this Court sit en banc and certify a “question of law . . .

concerning [the] proper interpretation and application of Texas Rules of Civil

Procedure Rule 306a(4) to the Texas Supreme Court[.]” 1 But we do not have the

authority to create the certification procedure Izen suggests the Court follow.

Even so, the record shows Izen’s appeal is moot. In the trial court, Izen

invoked the procedure litigants follow to claim they received late notice of a

judgment.2 By invoking that procedure, the trial court had limited jurisdiction, the

jurisdiction required to decide when Izen first received notice or acquired knowledge

of the trial court’s order dismissing his case in June 2021. 3

On September 16, 2021, when the trial court signed the order granting Izen’s

motion for new trial, the trial court still had plenary power over its June 2021 order

of dismissal. By granting the motion, the trial court found that Izen was not provided

with actual or constructive notice of the court’s order of dismissal. The trial court’s

findings relevant to the arguments Izen presented thereon his claim of late notice can

be implied from the trial court’s September 16 order granting Izen’s motion for new

1 Izen cites no authority for the certification procedure that he is proposing the Court follow. 2 See generally Tex. R. Civ. P. 306a(4). 3 In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006). 2 trial.4 The timetables relevant to the trial court’s plenary power over its judgment

ran from the date the trial court granted Izen’s motion for new trial.5 Thus, the trial

court still had plenary power over its June 2021 order of dismissal when, on

September 16, 2021, it granted Izen’s motion for new trial.

We conclude Izen’s appeal, in which he complains about the June 2021 order

of dismissal, is moot. Without regard to the merits of Izen’s appeal, it is dismissed

as moot. 6

APPEAL DISMISSED.

PER CURIAM

Submitted on October 27, 2021 Opinion Delivered October 28, 2021

Before Kreger, Horton and Johnson, JJ.

4 Id. at 686. 5 See Tex. R. Civ. P. 306a(4). 6 See Tex. R. App. P. 42.3(a), 43.2(f). 3