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Gentry v. Siemens Financial Services, Inc.

Court of Appeals of Texas, Fourteenth District

December 7, 2017

JERRY LEE GENTRY, II, Appellant
v.
SIEMENS FINANCIAL SERVICES, INC., Appellee

         On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2015-68003

          Justices Boyce, Jamison, and Brown.

          MEMORANDUM OPINION

          William J. Boyce Jusice

         Plaintiff/appellee Siemens Financial Services, Inc. filed a motion to dismiss this appeal for lack of jurisdiction, contending defendant/appellant Jerry Lee Gentry, II filed his notice of appeal more than a year past the deadline. Gentry has not filed a response to the motion. We conclude we lack jurisdiction and, therefore, grant the motion.

         Background

         A. Proceedings before Judge Lunceford

         Judge Erin Lunceford of the 61st District Court granted summary judgment for Siemens on March 21, 2106 ("the 2016 Judgment") with respect to its claims arising out of Gentry's alleged default on two medical equipment leases. Gentry timely filed a motion for new trial. Judge Lunceford held a hearing on the motion on May 27, 2016. The transcript of the hearing includes the following exchange between Judge Lunceford and Gentry's counsel:

THE COURT: . . . But see - okay. The order is Defendant's Motion for Reconsideration or for a New Trial.
[COUNSEL]: It's denied.
THE COURT: It's denied.
[COUNSEL]: I think that's what he's asking the Court to do.
THE COURT: Okay. Well, and I think that you have an understanding and that's what I understand it to be; we will deny the motion.

         The same day, Judge Lunceford signed an order on Gentry's motion for new trial ("the New Trial Order"). She used the form of order Gentry had submitted, which contained language granting the motion for new trial. The order as signed by Judge Lunceford, though, contains strikeouts of and additions to the preprinted language. The words "GRANTED" and "GRANTS" are crossed out, and "DENIED" and "DENIES, " respectively, are typed above them. However, the following passages are unchanged: "the Court finds that the motion has merit" and "orders a new trial in the interest of justice and fairness":

         (Image Omitted)

         Thus, the New Trial Order reads as follows:

On the 27th day of May, 2016, the Court considered Defendant's Motion for Reconsideration or for New Trial. After considering the evidence contained within the motion and the arguments of counsel, the Court finds that the motion has merit and therefore should be DENIED. The Court DENIES the motion and orders a new trial in the interest of justice and fairness.

         (italics in original).

         Because Gentry timely filed a motion for new trial, he had ninety days from the date the 2016 Judgment was signed to file a notice of appeal. Tex.R.App.P. 26.1(a). The ninetieth day following the 2016 Judgment was June 20, 2016. Gentry did not file a notice of appeal from the 2016 Judgment.

         In September 2016, Siemens filed a motion to compel under Texas Rule of Civil Procedure 621a for post-judgment discovery in aid of enforcing the 2016 Judgment. Gentry opposed the motion to compel, but he did not suggest in his opposition that he had been granted a new trial. Based on those filings, it appears both ...


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