Allen v. Havens, No. 2-05-318-CV (Tex. App. 3/15/2007)

• Court: Texas Court of Appeals
• Writing for the Court: Sue Walker
• Decision Date: 15 March 2007
• Docket Number: No. 2-05-318-CV.,2-05-318-CV.
• Citation: Allen v. Havens, No. 2-05-318-CV (Tex. App. 3/15/2007), No. 2-05-318-CV. (Tex. App. Mar 15, 2007)
• Parties: JUDY ALLEN, INDEPENDENT ADMINISTRATRIX OF THE ESTATE OF MARVIN FRED ALLEN, AND INDIVIDUALLY, AS THE SURVIVING SPOUSE, Appellant, v. JOHN F. HAVENS, Appellee.

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JUDY ALLEN, INDEPENDENT ADMINISTRATRIX OF THE ESTATE OF MARVIN FRED ALLEN, AND INDIVIDUALLY, AS THE SURVIVING SPOUSE, Appellant, v. JOHN F. HAVENS, Appellee.

No. 2-05-318-CV.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: March 15, 2007.

Appeal from Probate Court No. 2 of Tarrant County.

Panel A: HOLMAN, GARDNER, and WALKER, JJ.

MEMORANDUM OPINION¹

SUE WALKER, Justice.

I. INTRODUCTION

In this interlocutory appeal, Appellant Judy Allen, independent administratrix of the estate of Marvin Fred Allen ("Fred Allen"), and individually, as the surviving spouse, challenges the trial court's order granting the special appearance of Appellee John F. Havens. Before we address the merits of the trial court's special appearance ruling, we must address two preliminary issues raised by the parties. First, we must address whether Allen timely perfected her appeal; Havens claims that she did not. Second, we must determine exactly what evidence the trial court considered in granting Havens's special appearance. For the reasons discussed below, we hold that Allen's appeal is timely and that the trial court properly did not consider Allen's exhibits A, B, and D through M at the special appearance hearing. Concerning the merits of the trial court's ruling granting Havens's special appearance, we affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

At issue in the underlying case is the payment of the proceeds of a $1,000,000 life insurance policy on the life of Fred Allen, who is now deceased. The insurance company paid the proceeds to CreditWatch, a group of entities owned by Havens, instead of to Fred Allen's estate as Judy Allen contends should have occurred.

Allen sued Havens in his individual capacity, as well as other people and entities, asserting that "through his agents," Havens committed fraud, tortious interference with an inheritance, and conspiracy. Havens entered a rule 120(a) special appearance, arguing that because he resides in Florida and does not have sufficient Texas contacts, Texas courts have no jurisdiction over him individually. On June 7, 2005, after holding a hearing on the special appearance, the probate court granted Havens's motion and signed an order dismissing for want of personal jurisdiction the claims asserted against Havens individually. On September 1, 2005, Allen perfected this appeal.

III. TIMELINESS OF ALLEN'S NOTICE OF APPEAL

In a single cross issue, Havens contends that Allen failed to timely perfect this interlocutory appeal because she failed to file a notice of appeal within twenty days after the trial court signed the order granting Havens's special appearance and because she failed to comply with the requisites set forth in rule 306a(4) and (5). See TEX. R. CIV. P. 306a(4), (5).

Allen filed her notice of appeal on September 1, 2005. Five days later, on September 6, 2005, Allen filed a sworn motion to establish the applicability of rule 306a(4) and (5). The motion alleged that Allen did not receive actual notice of the trial court's order granting Havens's special appearance and dismissing the suit against Havens until August 19, 2005—more than twenty days after the trial court signed the order—so that under rule 306a(4), the time period for filing a notice of appeal began to run on that date. On January 9, 2006, pursuant to rule 306a(4) and (5), the trial court made a specific finding that August 18, 2005 was the date on which Allen received notice and actual knowledge of the order granting Havens's special appearance. Because Allen's notice of appeal was filed on September 1, a date within twenty days of the August 18, 2005 date-of-actual-knowledge, her notice of appeal was timely filed. See TEX. R. CIV. P. 306a(4) (providing that when notice of a judgment or order is not received until between twenty and ninety days after it is signed, filing deadlines begin to run on date notice or actual knowledge is acquired); TEX. R. APP. P. 26.1 (requiring notice of appeal to be filed within twenty days of the date on which the order or judgment being appealed is signed).

But Havens argues that

[a]fter a hearing on the party's sworn [rule 306a] motion, the trial court must sign a written order that finds the date when the party or the party's attorney received notice or acquired actual knowledge of the signed order, and the trial court must enter the order within the trial court's `re-invoked' plenary jurisdiction.

Havens argues that after the trial court's plenary power expires, the trial court lacks jurisdiction to enter an order determining the date on which notice or actual knowledge was received. Consequently, Havens contends that Allen was required to obtain an order from the trial court on her rule 306a motion within the trial court's "re-invoked plenary power," that is—in the absence of a timely filed postjudgment motion that would extend the appellate timetable—within thirty days of August 18 or by September 17. Because the trial court did not enter an order until October 27, Havens contends that the trial court lacked jurisdiction to determine a date of actual notice under rule 306a(5) and that Allen's notice of appeal remained due within thirty days of the June 7, 2005 order granting Havens's special appearance and dismissing Allen's suit against him.

We recognize that some confusion exists on the issue of a trial court's "re-invoked" plenary jurisdiction following a final judgment when a rule 306a motion is filed. See, e.g., In re Lynd Co., 195 S.W.3d 682, 685-87 (Tex. 2006); John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740-42 (Tex. 2001); Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 539-43 (Tex. App.-Houston [1st Dist.] 2003, no pet.). The trial court's plenary power in this case, however, is not an issue because this is an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (Vernon Supp. 2006). A trial court retains continuing control over interlocutory orders and has the power to set those orders aside any time before a final judgment is entered. See, e.g., Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). When the trial court entered the order dismissing Allen's claims against Havens, when Allen filed her rule 306a motion, and when the trial court made its rule 306a(5) finding, Allen's claims against other defendants remained pending in the trial court; no severance order had been entered. Thus, the trial court here possessed primary jurisdiction over Allen's suit at the time it entered its 306a(5) finding of a date of notice or actual knowledge; because no judgment had been entered and the cause was still pending in the trial court, the trial court was not acting within any period of plenary jurisdiction. Accordingly, we hold that Allen timely perfected her appeal by filing her notice of appeal on September 1, 2005, a date that is within twenty days of the date on which the trial court determined that she received notice of the June 7, 2005 order granting Havens's special appearance and dismissing her claims against him. We overrule Havens's cross issue.

IV. EVIDENCE CONSIDERED BY TRIAL COURT IN GRANTING SPECIAL APPEARANCE

The next issue we must address is exactly what evidence the trial court considered in granting Havens's special appearance. At the special appearance hearing, Allen offered exhibits A through M as evidence for the trial court's consideration. These exhibits consist of documents that Allen found in her husband's personal files at their home. The documents appear to relate to CreditWatch—a group of Texas entities owned by Havens—but do not mention the life insurance policy or payment of its proceeds that are in dispute in the underlying case.

The parties take polar opposite positions on the issue of whether the trial court admitted and considered exhibits A, B, and D through M. Allen asserts that she offered the exhibits into evidence as "business records of the estate of Marvin Fred Allen" and that she (Judy Allen) was the custodian of the records under Texas Probate Code section 233 and Texas Rules of Evidence 803 and 902. See TEX. PROB. CODE ANN. § 233 (Vernon 2003); see also TEX. R. EVID. 803, 902. Allen claims that, although Havens objected to the exhibits as she offered them, the trial court took the admissibility of the exhibits under advisement and ultimately never ruled on Havens's objections so that, according to Allen, Havens's objections to the exhibits were waived. Havens, on the other hand, claims that the exhibits are records of CreditWatch, that Allen is not a proper custodian of the records of CreditWatch, and that the exhibits constituted inadmissible hearsay because Allen testified that she had no personal knowledge of the records and could not testify that the documents were kept in the course of CreditWatch's regularly conducted business activity or that it was CreditWatch's regular practice to make these records. Consequently, Havens claims that the trial court properly excluded and did not consider exhibits A, B, and D through M when it made its special appearance ruling.

The record reveals that Allen offered exhibits A through M into evidence during her own testimony at the special appearance hearing. Havens objected to each exhibit, except exhibit C,² and that the trial court overruled Havens's objections to some exhibits and sustained his objections to other exhibits. But then, about two-thirds of the way through the hearing, the trial court stated on the record that it was backtracking and, beginning with exhibit A, was taking the admissibility of all of the exhibits under advisement. The trial court then asked Allen to lay a predicate for each of the exhibits and heard objections from Havens. During this time, the trial court admitted exhibits J and M. At the conclusion of the special appearance hearing, however, the trial court reiterated that it was "going to take this all under advisement" and asked the parties to submit...