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Erickson v. Erickson

Court of Appeals of Texas, First District

May 10, 2018

LEE ERICKSON, Appellant
v.
SAMANTHA ERICKSON, Appellee

          On Appeal from the 308th District Court Harris County, Texas Trial Court Case No. 2012-33384

          Panel consists of Justices Bland, Lloyd, and Caughey.

          MEMORANDUM OPINION

          PER CURIAM

         In this appeal, appellant Lee Erickson challenged an order signed on October 2, 2017 dismissing his claims in his petition to modify custody arrangements. The trial court subsequently granted a new trial as to Lee's claims, and he now contends that we lack jurisdiction over the appeal. We agree.

         Notably, at the time that the court issued its October 2, 2017 order dismissing Lee's claims, appellee Samantha Erickson's claims in her counter-petition remained pending. Because the October 2 order did not adjudicate Samantha's claims and contained no finality language, it was interlocutory. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001) (no final and appealable judgment was rendered because nothing in order indicated it was final and it did not dispose of all pending claims and parties).

         On November 1, 2017, in the lower court, Lee filed a motion for new trial asking the trial court to reconsider its October 2 order dismissing Lee's claims. On January 19, 2018, Samantha filed a notice of nonsuit of all claims raised in her counter-petition. On January 31―within 30 days of the counter-petition's nonsuit notice―the trial court granted the motion for new trial as to Lee's claims.

         Samantha contends the trial court lacked the power on January 31, 2018 to grant Lee's motion for new trial. We disagree.

         The October 2 order was interlocutory, and the trial court retained plenary power over the case until at least 30 days after final judgment disposing of both Lee's claim and the claims in his counter-petition. See Tex. R. Civ. P. 329b(d), (e); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (trial court retains plenary power for minimum of 30 days after final judgment). The trial court granted a new trial on Lee's claim within 30 days of Samantha's notice of the nonsuit of her counter-petition. The trial court thus retained plenary power over the action at the time it granted the new trial. See In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex. 2005) (orig. proceeding) ("Because the default judgment was interlocutory, the trial court retained jurisdiction to set the judgment aside and order a new trial."); Lakota Resources, Inc. v. Pathex Petroleum, Inc., Nos. 01-07-00369-CV & 01-07-00537-CV, 2008 WL 3522253, at *2 (Tex. App.-Houston [1st Dist.] Aug. 14, 2008, no pet.) ("As a general rule, a trial court retains plenary power over its interlocutory orders until a final judgment is entered. Additionally, a trial court has the inherent authority to change or modify any interlocutory order until its plenary power expires."); In re Sierra Title, Nos. 13-10-055-CV & 13-10-099-CV, 2010 WL 1019632, at *4 (Tex. App.-Corpus Christi March 18, 2010, orig. proceeding) (because counterclaims remained pending, order of dismissal was interlocutory and trial court retained jurisdiction to grant motion to reinstate).

         Samantha argues that, even if the October 2 order was not a final judgment, once the appellate court's jurisdiction was invoked by the filing of a notice of appeal, the trial court could not modify the October 2 order and thus interfere with the appellate court's jurisdiction. But an appellate court's jurisdiction is "invoked upon the filing of a notice of appeal from either a final judgment that disposes of all parties and claims or an interlocutory order that the legislature has deemed appealable." Lane-Valente Indus. (Nat'l) Inc. v. Land Lease (US) Constr., Inc., No. 01-12- 00706-CV, 2013 WL 593701, at * 1 (Tex. App.-Houston [1st Dist.] Feb. 14, 2013, no pet.) (first citing Lehmann, 39 S.W.3d at 195; then citing Tex. Civ. Prac. & Rem. Code § 51.014). Neither applies here.

         Finally, Samantha proposes that, even if the trial court had plenary power over the 2012 cause of action, it did not have power to grant a new trial in the 2013 cause of action. But both Lee's original petition and Samantha's counter-petition were filed in the 2012 cause of action. The court also granted the motion for new trial in the 2012 cause of action.

         We agree with Lee that we have no jurisdiction over this appeal. The October 2 order that Lee initially attempted to appeal was interlocutory and has now been withdrawn. Absent a final, appealable judgment, we must dismiss. See Duke v. Am. W. Steel, LLC, 526 S.W.3d 814, 817 (Tex. App.-Houston [1st Dist.] 2017, no pet.).

         Accordingly, we grant the motion to dismiss. Any pending motions, including Samantha's emergency ...


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