Kathy Schroeder v. Merle Haggard and HAG, Inc.--Appeal from 216th Judicial District Court of Gillespie County

MEMORANDUM OPINION
No. 04-06-00508-CV
Kathy SCHROEDER,
Appellant
v.
Merle HAGGARD and HAG, Inc.,
Appellees
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 9591
Honorable Charles Sherrill, Judge Presiding (1)

Opinion by: Rebecca Simmons, Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: May 16, 2007

 

DISMISSED

 

Merle Haggard was to perform a concert in Fredericksburg, Texas on October 27, 2001. Haggard failed to perform, and Schroeder filed suit against Haggard and HAG, Inc. (hereinafter Haggard). The trial court dismissed Schroeder's case for lack of standing and awarded fees and costs to Haggard. Schroeder now brings this appeal.

Factual Background

On December 10, 2004, the trial court signed the "Final Judgment" dismissing Schroeder's cause of action with prejudice, denying her motions for continuance and sanctions, and awarding an undetermined amount of attorney's fees and $50.00 in costs to Haggard. Three days later, on December 13, 2004, the trial court signed three separate orders granting the same relief as granted in the December 10, 2004 judgment, but including an amount for attorney's fees.

On January 4, 2005, the trial court wrote a letter to the parties, reaffirming the dismissal with prejudice, but requesting a hearing as to attorney's fees and costs. The trial court asked the parties to submit a nunc pro tunc order and an order of severance. (2)

Schroeder submitted a proposed order dismissing the case and severing the attorney's fees issue as requested in the judge's letter, but the judge never signed the same. Instead, in March, the judge set "all pending matters" for hearing in April.

A year later, on April 18, 2006 and again on June 5, 2006, the trial court heard arguments regarding "all pending matters before the Court and Severance of Attorneys' Fees." On July 10, 2006, more than a year and a half after its first "Final Judgment," the trial court entered a second "Final Judgment." Schroeder filed her notice of appeal on July 27, 2006. Haggard contends the December 13, 2004 orders represent the final judgment, and Schroeder's appeal is untimely.

Final Judgments

With limited exceptions, a party may not appeal a ruling unless the trial court issues a final judgment disposing of all causes of action and all parties. Tex. Civ. Prac. & Rem. Code Ann. 51.012 (Vernon 2006); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Once a judgment is reduced to writing and signed by the court, the parties have thirty days to file motions to modify, correct, or reform judgments or for a new trial. Tex. R. Civ. P. 306(a)1; Tex. R. Civ. P. 329b(a). Unless the trial court grants a new trial, vacates, modifies, corrects, or reforms the judgment during this period, the judgment becomes final at the expiration of the trial court's plenary power. Tex. R. Civ. P. 329b. Any remaining motions for a new trial or to modify, correct, or reform the judgment are overruled by operation of law seventy-five days after the judgment is signed. Tex. R. Civ. P. 329b(c). Only one final judgment can be rendered in any lawsuit except where otherwise specifically provided by law. Tex. R. Civ. P. 301.

Schroeder argues the court's letter, requesting the parties to prepare orders, demonstrates the December 13, 2004 orders were not final because the trial court anticipated future action. Alternatively, Schroeder suggests the letter vacated the trial court's judgment and severed the attorney's fees issue. Haggard asserts the December 13, 2004 orders became final January 12, 2005, arguing that a letter which requests the preparation of orders is not an order that extends the appellate timetable or vacates the judgment.

The Texas Supreme Court addressed the issue of letter orders in Goff v. Tuchscherer, 627 S.W.2d 397 (Tex. 1982). In Goff, the trial court wrote a letter informing the parties that it was overruling a plea of privilege, and requested counsel prepare and present an order reflecting that ruling. Id. at 398. The Supreme Court concluded the letter did not constitute an order, and that the appellate timetable began when the formal order was entered. Id. at 398-99 (stating that "[l]etters to counsel are not the kind of documents that constitute a judgment, decision or order from which an appeal may be taken").

Schroeder directs our attention to Schaeffer Homes, Inc. v. Esterak, 792 S.W.2d 567, 569 (Tex. App.--El Paso 1990, no writ), in which the El Paso court of appeals held a letter constituted a final order when it was filed with the court and did not include a "draft, directive or subsequent order evidencing that the [court's] letter was not considered by the judge to be the operative order itself." Id. Furthermore, the court noted, the letter's contents substantially complied with "all the requisites of formal entry of the decision rendered." Id. Generally, however, letters which request the parties to draft additional documents are not final, appealable orders. See e.g., Perdue v. Patten Corp., 142 S.W.3d 596, 603 (Tex. App.--Austin 2004, no pet.) (holding a letter purporting to grant a motion for new trial and filed with the court clerk, was not an "operative order" because it also directed counsel to prepare an order); Barron v. Vanier, 190 S.W.3d 841, 846 (Tex. App.--Fort Worth 2006, no pet.) (concluding a letter which substantially complied with the requisites of a judgment was not an order because it was not filed in the clerk's record). The letter of January 4, although filed, anticipated further action and therefore did not extend the appellate deadlines.

The trial court's orders of December 13, 2004 constitute a final judgment, having modified the December 10, 2004 Final Judgment. Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988). In Check, the Supreme Court held "any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date the modified, corrected or reformed judgment is signed." Id.

The December 13, 2004 orders granted the motions to dismiss, awarded specific attorney's fees and costs, and denied the plaintiff's motion for sanctions. All parties and issues were disposed of through these orders. Although the trial court invited further motions in its letter, it did not vacate any of its prior orders, and failed to issue any further rulings until after its plenary power expired. Accordingly, the December 13, 2004 orders became final seventy-five days later, on February 26, 2005. See Tex. R. App. P. 329b. (3) All actions taken after February 26, 2005 were outside the trial court's plenary power and of no effect. Id.

Conclusion

Because Schroeder's appeal is untimely, we lack jurisdiction to hear her appeal. Accordingly, we dismiss this appeal.

Rebecca Simmons, Justice

 

1. Sitting by assignment.

2. In relevant part, the letter in this case reads:

 

Following a review of the captioned matter, the Court finds and is of the opinion, viz:

 

1. [Haggard's] Motion to Dismiss the case in chief is good and valid and the Court does order such Dismissed with Prejudice.

 

2. However, the Court feels that a hearing as to attorney's fees and costs needs to be formally and timely conducted.

 

3. The matter of attorney's fees and court costs need [sic] to be severed.

 

4. A Nunc Pro Tunc Order covering any and all purported Final Judgments needs to be submitted forthwith, together with an Order of Severance, for the Court's approval and signature.

 

The Court regrets that during the rush of the holiday season some Orders may have been signed by error.

3. Schroeder's submission of Plaintiff's Proposed Order and Motion for Adoption by the Court, seeking to modify the December 13, 2004 orders, was filed on January 6, 2005. Because no ruling was obtained, the motion was overruled by operation of law seventy-five days from the date of the judgment.