Stuart N. Wilson and Stuart N. Wilson & Associates, P.C. v. Silvia Trevino and Eleazer Maldonado

Opinion

Opinion issued June 21, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00441-CV ——————————— STUART N. WILSON AND STUART N. WILSON & ASSOCIATES, P.C., Appellants V. SILVIA TREVINO AND ELEAZER MALDONADO, Appellees

On Appeal from the 387th District Court Fort Bend County, Texas Trial Court Case No. 13-DCV-209723A

MEMORANDUM OPINION

This is an attempted interlocutory appeal from a trial court letter signed May

30, 2019. Appellee Eleazer Maldonado filed an emergency motion to dismiss this

appeal for want of jurisdiction, claiming that the letter was not an appealable

interlocutory order. Maldonado has moved for emergency dismissal, claiming that the trial court has until July 1 to rule on Maldonado’s motion to dismiss under

Section 27.003. See TEX. CIV. PRAC. & REM. CODE § 27.003(a). Appellee Sylvia

Trevino subsequently filed her emergency motion to dismiss and joinder in

Maldonado’s motion. Appellants Stuart N. Wilson and Stuart N. Wilson &

Associates, P.C. responded to the motions and oppose them.

The underlying case was a divorce action in which appellants represented

Trevino, but their services were later terminated. Appellants intervened for

attorney’s fees and raised claims of breach of contract, fraud, wire fraud, civil

conspiracy to commit fraud, unjust enrichment, business disparagement, and

fraudulent inducement. These claims were severed from the divorce action into a

separate case, and Trevino and Maldonado sought dismissal of appellants’ claims

under the Texas Citizens’ Participation Act, arguing that the claims related solely to

the exercise of Trevino’s and Maldonado’s rights to petition. See TEX. CIV. PRAC. &

REM. CODE § 27.003(a).

By letter dated May 30, 2019, the trial court stated that Maldonado’s motion

to dismiss was granted as to all causes of action and that Trevino’s motion to dismiss

was granted as to all causes of action except the claims of fraud and fraudulent

inducement. The letter set a date for a hearing on attorney’s fees and sanctions as

requested in the motions and stated that “[e]ntry of orders in the above ruling is

likewise scheduled for June 17, 2019 at 9:00 a.m.”

2 Although a trial court letter is generally not the type of document that

constitutes a judgment or order, see Goff v. Tuchsherer, 627 S.W.2d 397, 398–99

(Tex. 1982), a letter may be construed to be 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. In re CAS Cos., LP, 422 S.W.3d 871, 875 (Tex. App.—Corpus Christi 2017, orig.

proceeding).

In CAS, the court determined that the trial court’s letter constituted a valid

order because it contained the name and cause number of the case, it was dated and

signed by the trial judge, it contained an affirmative ruling that was not anticipatory

of further orders, and it was subsequently filed with the clerk. See id. at 876; see also

In re Newby, 266 S.W.3d 557 (Tex. App.—Amarillo 2008, orig. proceeding)

(holding that trial court letter ruling on motions was valid order because letter was

signed by trial court, filed with district clerk, and indicated trial court’s intent for

letter to be order without anticipating future ruling on motions); Schaeffer Homes,

Inc. v. Esterak, 792 S.W.2d 567, 569 (Tex. App.—El Paso 1990, no writ) (letter to

parties held to be order granting new trial based on clear language with nothing

evidencing letter was not to have operative effect); Champion Int’l Corp. v. Twelfth

Ct. of Apps., 762 S.W.2d 898, 899 (Tex. 1988) (orig. proceeding) (letter order held

3 to be valid order as it stated in present language that court was ordering mistrial and

that new trial would be scheduled).

Although the trial court’s May 30 letter states its ruling—granting the motions

to dismiss—the court also states that entry of orders for those rulings will take place

on June 17 (those orders were not entered). By stating that future action and entry

would occur, the trial court indicated that its letter was not to have operative effect.

See Goff, 627 S.W.2d at 398 (holding that trial court letter was not valid order even

though it stated trial court had overruled plea of privilege because letter also

requested preparation of order which indicated intent that letter was not valid,

appealable order); In re Johnson, 557 S.W.3d 740, 744 (Tex. App.—Waco 2018,

orig. proceeding) (holding that trial court’s letter expressed intent that letter was not

formal order and subsequent written order signed outside trial court’s plenary power

was void); Perdue v. Patton Corp., 142 S.W.3d 596, 603 (Tex. App.—Austin 2004,

no pet.) (holding that trial court’s letter to parties requesting preparation of order

granting motion for new trial indicated that trial court did not intend for letter to have

operative effect and thus, it was not valid, signed order ruling on motion for new

trial).

Because the trial court’s May 30 letter is not an order, it may not be the basis

for an appeal. See Morris v. State of Tex. Parks and Wildlife Dept., No. 13–03–

00372–CV, 2004 WL 555425, at *1–2 (Tex. App.—Corpus Christi Mar. 16, 2004,

4 no pet.) (mem. op.) (dismissing appeal for lack of jurisdiction because trial court

letter was not intended to be trial court’s order).

Maldonado and Trevino also claim that we lack jurisdiction because the trial

court purports to grant the motions to dismiss in the letter, rather than to deny them. 1

Because we find that the letter is not an appealable order, we need not reach this

argument.

We grant the motions to dismiss and dismiss this appeal for lack of

jurisdiction.2 Any other pending motions are dismissed as moot.

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

1 Section 51.014(a)(12) provides for appeal from an interlocutory order that denies a motion to dismiss under Section 27.003, but not an order that grants a motion to dismiss. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12). 2 Trevino and Maldonado also ask that we award attorney’s fees to appellees for having to respond to the “improvident appeal.” This Court does not have the power to award attorney’s fees. We may grant damages for a frivolous appeal under Rule 45, but we decline to do so. See TEX. R. APP. P. 45. 5