Richard Witt Duncan v. Prewett Rentals Series 2 752 Military, LLC Tami Jan, Ward Galbreath, Sumit Kapoor, Rachel Kapoor, Nakul Jeirath, Tasha Jeirath, Mark L. Reis, Janis R. Reis, Charles A. Bess, Jr., Dancee D. Bess, Christopher Bellshaw, Catherine Bellshaw, Santos S. Salinas, and Debra Salinas
03-21-00244-CV
| Tex. App. | Jun 25, 2021Background
- Appellant Richard Witt Duncan filed an unopposed motion in the trial court seeking permission for an interlocutory (permissive) appeal under Tex. R. Civ. P. 168 and Tex. Civ. Prac. & Rem. Code § 51.014(d)–(f).
- The trial-court clerk forwarded Duncan’s motion to the Court of Appeals, which mistakenly docketed it as a new appeal.
- Duncan informed the appellate court that the document was his motion for permission to appeal and that a hearing was set for June 3, 2021; the trial court held the hearing and orally indicated it intended to grant the motion.
- No signed, written order granting permission to appeal had been filed in the appellate record; the Court noted appellate jurisdiction requires a signed appealable order.
- Because oral rulings and docket entries are not sufficient to perfect an appeal, the Court abated the appeal and remanded to the trial court to prepare and sign the written order.
- The Court directed the parties to file a supplemental clerk’s record containing the signed order, or a joint status report if none is signed, by July 26, 2021, and warned the appeal may be dismissed for lack of jurisdiction if no filing is made.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appellate court has jurisdiction based on an oral ruling/docket entry | Duncan: trial court heard the motion and intended to grant permission to appeal; appellate action justified | Appellees: no signed written order exists, so no appealable order and no jurisdiction | Court: No jurisdiction without a signed written order; abated and remanded for signing |
| Whether the appeal should be dismissed or abated pending a signed order | Duncan: seek abatement to allow trial court to sign order and then file petition for permission to appeal | Appellees: dismissal appropriate until an appealable order is entered | Court: Abates the appeal and remands to permit signing rather than dismissing immediately |
| Timing to perfect a permissive appeal after a signed order | Duncan: will need the rule period once an order is signed | Appellees: (implicit) normal timing rules apply | Court: If order is signed, Duncan gets the time provided by Tex. R. App. P. 28.3(c) to file petition for permission to appeal |
| Whether trial court retains power before a signed order | Duncan: N/A | Appellees: trial court retains plenary power until order is signed | Court: Confirms trial court retains plenary power per Tex. R. Civ. P. 329b(d) |
Key Cases Cited
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (explains final-judgment rule and that appeals lie only from final judgments or statutory exceptions)
- Smith v. McCorkle, 895 S.W.2d 692 (Tex. 1995) (orig. proceeding) (a docket entry or oral rendition is not a written order for purposes of perfecting an appeal)
- Ganesan v. Reeves, 236 S.W.3d 816 (Tex. App.—Waco 2007) (explains appellate courts are not required to hold appeals open pending a future appealable order)
- In re Washington, 7 S.W.3d 181 (Tex. App.—Houston [1st Dist.] 1999) (once notice of appeal is delivered to the trial-court clerk, the appellate court may address whether it has jurisdiction)