Opinion
No. 05-16-00111-CV
05-08-2017
DERRICK J. HAHN AND HAHN LAW FIRM, P.C., Appellants v. SOUTHWEST DOUBLE D RANCH, LP, Appellee
On Appeal from the 162nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-14-03263
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Lang-Miers
By letter to the parties, we questioned our jurisdiction over this appeal in light of the trial court's Order on Defendants' Motion for New Trial that ordered "a new trial on the issues of fraud and breach of fiduciary duty." We asked appellants Derrick J. Hahn and Hahn Law Firm, P.C. (Hahn Parties) to file a letter brief addressing our concern and gave appellee Southwest Double D Ranch, LP an opportunity to respond. The Hahn Parties filed a letter brief contending that this Court has jurisdiction. Southwest did not respond. We dismiss for lack of jurisdiction.
APPLICABLE LAW
Generally, this Court has jurisdiction only over appeals from final judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A final judgment is one that disposes of all pending parties and claims. See id. But an order granting a motion for new trial is an interlocutory order and is not appealable. Lynn v. Hanna, 296 S.W. 280, 281 (Tex. 1927); Gore v. Gore, No. 05-13-01025-CV, 2014 WL 1018650, at *1 (Tex. App.—Dallas Mar. 17, 2014, no pet.). "When a new trial is granted, the case stands on the trial court's docket 'the same as though no trial had been had.'" In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 230-31 (Tex. 2008) (orig. proceeding) (quoting Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005)).
We construe court orders and judgments under the same rules of interpretation as those applied to other written instruments. Payless Cashways, Inc. v. Hill, 139 S.W.3d 793, 795 (Tex. App.—Dallas 2004, no pet.). We construe an unambiguous order in light of the literal meaning of the language used. Id. In addition, "[w]hen the judgment or order on its face is plain and unambiguous, extrinsic matters may not be considered to give the decree a different effect from that expressed by the literal meaning of the words used therein." McLeod v. MeLeod, 723 S.W.2d 777, 779 (Tex. App.—Dallas 1987, no writ); see In re A.L.H.C., 49 S.W.3d 911, 918 (Tex. App.—Dallas 2001, pet. denied).
BACKGROUND
Southwest sued Derrick Hahn for breach of contract, breach of fiduciary duty, fraud by non-disclosure, suit on a debt, money had and received, unjust enrichment, and violations of the Texas Theft Liability Act and sued the Hahn Law Firm, P.C. for suit on a debt, money had and received, and unjust enrichment. After a bench trial, the trial court entered judgment for Southwest against the Hahn Parties, jointly and severally, for $85,683.68 in actual damages and $13,527.12 in attorney's fees, plus post-judgment interest and costs. The judgment did not specify on which claims the trial court awarded damages. The trial court subsequently made findings of fact and conclusions of law supporting the judgment.
Then the Hahn Parties filed "DEFENDANTS' MOTION FOR NEW TRIAL[.]" They asked "the Court to grant a new trial in the interest of justice and fairness for the limited purpose of reopening the evidence[.]" The motion stated that the trial court previously had not allowed the Hahn Parties to admit sealed documents from a separate proceeding—the petition and final decree from a divorce case involving Derrick Hahn—and that the court should reopen the evidence because the other court had subsequently unsealed the documents. The motion stated that, "[a]lthough all parties have rested, it is necessary for Defendants to present additional relevant evidence relative to Defendants' affirmative defense of res judicata."
The trial court signed an Order on Defendants' Motion for New Trial which reads:
Case No. DC-14-03263
SOUTHWEST DOUBLE D RANCH, LP, PLAINTIFF,
v.
DERRICK J. HAHN AND HAHN LAW FIRM, P.C., DEFENDANTS.
IN THE COUNTY COURT
OF DALLAS COUNTY, TEXAS
162ND JUDICIAL DISTRICT
ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL
After considering DERRICK J. HAHN and HAHN LAW FIRM, PC's Motion for New Trial, the response, the pleadings, and arguments of counsel, the Court
DENIES the Motion.
GRANTS the Motion and orders a new trial on the issues of fraud and breach of fiduciary duty. The new trial is granted on those issues because of newly available evidence that is dispositive of both issues as a matter of law. In granting a partial new trial, the Court admits in evidence Exhibits A, B and Cattached to Defendant's Motion for New Trial and makes the following findings and conclusions:
1. The breach of fiduciary duty and fraud claims are separable without unfairness to the parties. Both such claims are barred by principles of res judicata, which is established upon the admission of the newly available evidence
2. The damages in this case are liquidated.
SIGNED on February 1, 2016.
/s/_________
PRESIDING JUDGE
Order on Defendants' Motion for New Trial
On the same day that the trial court signed the Order on Defendants' Motion for New Trial, the Hahn Parties filed their notice of appeal. In their appellate brief, the Hahn Parties state that they "filed a motion for new trial" "[b]ut the motion sought only to reopen the evidence and permit introduction of three additional exhibits." And they note that Southwest did not respond to the motion. Southwest does not discuss the motion for new trial in its appellate brief.
ANALYSIS
In response to our letter questioning our jurisdiction over this appeal in light of the trial court's grant of the motion for new trial, the Hahn Parties contend that "[t]he trial court's order only reopened the evidence to admit three exhibits—it did not grant a new trial." The Hahn Parties state that "the entire argument" and "all legal authority" in their motion concerned the "need to reopen the evidence" under rule 270 of the rules of civil procedure. See TEX. R. CIV. P. 270 (providing court "may permit additional evidence to be offered at any time" when "it clearly appears to be necessary to the due administration of justice"). The Hahn Parties argue that the motion "[f]unctionally and substantively" was "a motion to reopen the evidence under [r]ule 270" and was "not a motion for new trial."
In the letter brief, the attorney for the Hahn Parties also states, "My understanding is that the parties agree on this issue." But, assuming that understanding is correct, parties cannot confer jurisdiction upon an appellate court by agreement. See Wilkinson v. Wilkinson, 419 S.W.2d 226, 228 (Tex. Civ. App.—Dallas 1967, no writ).
If the Order on Defendants' Motion for New Trial was ambiguous, we generally would construe the order in light of the motion upon which it was granted. See Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404 (Tex. 1971); Senger Creek Dev., LLC v IH45 Invs., LLC, No. 01-15-01097-CV, 2016 WL 1658918, at *3 (Tex. App.—Houston [1st Dist.] Apr. 26, 2016, pet. denied) (per curiam). But neither party contends that the order is ambiguous and we conclude that it is not. As the Hahn Parties state in their letter brief, the order "appears to have been drafted with the idea that the trial court would select one of two different options either denying or granting the motion." Instead, the trial court struck out portions of the text concerning the grant of the motion for new trial and signed the order. As the Hahn Parties say in their letter brief, the trial court's edits of the language in the order granting the motion "make clear the trial court's intent to grant the motion." Because the order is not ambiguous, we may not consider the substance of the motion or, as the Hahn Parties also argue, how the parties and the trial court treated the order "to give the decree a different effect from that expressed by the literal meaning of the words used therein." McLeod, 723 S.W.2d at 779; see Payless Cashways, 139 S.W.3d at 795; In re A.L.H.C., 49 S.W.3d at 918.
We conclude that, by striking out language and signing the order, the trial court granted the motion and limited its ruling (1) to grant a new trial on the issues of fraud and breach of fiduciary duty "because of newly available evidence that is dispositive of both issues as a matter of law" and (2) "[i]n granting a partial new trial," to admit three exhibits into evidence. When the trial court struck the words in a portion of the order, the trial court necessarily did not adopt the proposed findings and conclusions stating that the breach of fiduciary duty and fraud claims are separable and barred by res judicata and that damages are liquidated. See Grace v. Titanium Electrode Prods., Inc., 227 S.W.3d 293, 296 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (concluding that, when trial court struck through language in judgment granting attorney's fees and initialed the change, "the trial court necessarily denied that relief"); Cox v. Upjohn Co., 913 S.W.2d 225, 228 (Tex. App.—Dallas 1995, no writ).
In their letter brief, the Hahn Parties also argue that, because the order admits the exhibits into evidence instead of stating that the trial court will admit the exhibits into evidence at a later trial, "the order cannot possibly be anything other than an order to reopen the evidence." But the rules of civil procedure provide that "[n]ew trials may be granted" "for good cause" "on such terms as the court shall direct." TEX. R. CIV. P. 320. The "terms" that the court included in the order are not limited to admitting evidence. The court also granted the motion and ordered a new trial on the issues of breach of fiduciary duty and fraud because of newly available and dispositive evidence. See Payless Cashways, 139 S.W.3d at 795 (stating appellate court to construe an unambiguous "order in light of the literal meaning of the language used").
Because the trial court's order does not dispose of all claims, the judgment is not final and this Court lacks jurisdiction. Accordingly, we dismiss the appeal. See TEX. R. APP. P. 42.3(a).
CONCLUSION
We dismiss the appeal for lack of jurisdiction.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 160111F.P05
JUDGMENT
On Appeal from the 162nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-14-03263.
Opinion delivered by Justice Lang-Miers, Justices Francis and Whitehill participating.
In accordance with this Court's opinion of this date, the appeal is DISMISSED for want of jurisdiction.
It is ORDERED that appellee SOUTHWEST DOUBLE D RANCH, LP recover its costs of this appeal from appellants DERRICK J. HAHN AND HAHN LAW FIRM, P.C. and from the cash deposit in lieu of supersedeas bond. After all costs have been paid, the clerk of the district court is directed to release the balance, if any, of the cash deposit to DERRICK J. HAHN AND HAHN LAW FIRM, P.C. Judgment entered this 8th day of May, 2017.