Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilson v. Trevino

Court of Appeals of Texas, First District

August 1, 2019

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

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

          SUBSTITUTE MEMORANDUM OPINION

          PER CURIAM

         We withdraw our opinion and judgment issued on June 21, 2019 and issue this substitute opinion.[1] Appellants' motion for rehearing is denied.[2]

         This is an attempted accelerated 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.[3] Appellee Sylvia Trevino subsequently filed her emergency motion to dismiss and joinder in Maldonado's motion. Appellants Stuart N. Wilson and Stuart N. Wilson and Associates, P.C. responded to the motions and opposed them. We dismiss the appeal for want of jurisdiction.

         Background

         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. Trevino and Maldonado subsequently sought dismissal of appellants' claims under the Texas Citizens' Participation Act, arguing that the claims related solely to the exercise of Trevino and Maldonado's right to petition. See Tex. Civ. Prac. & Rem. Code § 27.003(a).

         By letter dated May 30, 2019, the trial court granted Maldonado's motion to dismiss as to all causes of action and granted Trevino's motion as to all but two causes of action. The trial court further found that it had good cause to hold a hearing on the requests for attorney's fees and sanctions and set a hearing for June 17, 2019. Finally, the trial court stated: "Entry of orders in the above ruling is likewise scheduled for June 17, 2019 at 9:00 a.m."

         Analysis

         Appellees contend in their motions to dismiss this appeal that we lack jurisdiction because the trial court's letter ruling is neither a valid order nor appealable. Appellants disagree, claiming that the letter ruling constitutes a valid order, and that it is appealable under the Texas Supreme Court's decision in D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429 (Tex. 2017).

         1. The language of the letter complies with the statute but does not indicate it is intended to be an order

         Generally, a letter is not the type of document that constitutes a judgment or order. See Goff v. Tuchsherer, 627 S.W.2d 397, 398-99 (Tex. 1982). But, courts continue to grapple with the problem of determining whether a letter should be construed as an order. See In re Johnson, 557 S.W.3d 740, 743 (Tex. App.-Waco 2018, orig. proceeding). Some courts attempt to discern whether the trial court intended to issue a formal ruling or judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001); Johnson, 557 S.W.3d at 743. Other courts have developed a list of attributes that may indicate that a trial court's letter should be construed to be an order.[4] See, e.g., In re CAS Co., LP, 422 S.W.3d 871, 875 (Tex. App.-Corpus Christi 2017, orig. proceeding).

         Looking at the language used by the trial court as it endeavored to comply with the statutes governing motions to dismiss, we concluded that the trial court intended to rule on the motions to dismiss, but did not intend for the letter to be a valid, appealable order. The trial court's letter dated May 30, 2019, contains four sentences: (1) "The Motion to dismiss filed by Eleazer Maldonado on April 5, 2019 with a hearing on May 29, 2019 is granted as to all causes of action;" (2) "The Motion to Dismiss filed by Silvia Trevino (PKA Maldonado) on April 8, 2019 with a hearing on May 29, 2019 is granted as to all causes of action except the claim of Fraud and Fraudulent Inducement;" (3) "The court finds good cause based on the court's docket to conduct a hearing on the attorney fees and sanctions requested in the motions to dismiss on June 17, 2019 at 9:00 a.m.;" and (4) "Entry of the orders in the above ruling is likewise scheduled for June 17, 2019 at 9:00 a.m."

         The first two sentences of the trial court's letter state affirmative rulings on the motions to dismiss. The trial court also indicates the date of the hearing on the motions to dismiss. This is significant because there is a statutory deadline for ruling on the motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 27.005(a). Section 27.005 requires a trial court to rule on a motion to dismiss within 30 days of holding the hearing. See id. If the trial court fails to rule on a motion to dismiss within this 30-day period, the motion is denied by operation of law. See id. § 27.008(a). By giving the date of the hearing (May 29), which was one day before the trial court signed its letter ruling on the motions (May 30), the trial court indicates that its ruling on the motions complies with the statutory deadline.

         But, the language of Section 27.005 is interesting for what it does not include. Section 27.005 does not state that the ruling on the motions must be in an order. Rather, the statute only states that the trial court must "rule" on the motions to dismiss within the 30-day period after the hearing. See id. § 27.005(a); Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *7 (Tex. App.-Austin Apr. 11, 2014, pet. denied) (holding that Section 27.005(a) only requires ruling, not signed order, within 30 days after hearing on motions). Thus, there is no statutory requirement ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.