JAMES DURHAM v. SANDRA JONES (2011)

MEMORANDUM OPINION

James Durham appeals the trial court's order granting Sandra L. Jones's motion to enforce divorce decree.   Concluding the order is not final and appealable, we dismiss the appeal for want of jurisdiction.

Durham and Jones were divorced in September 2007.   Two years later, Jones filed a petition against Durham and a third party to enforce certain provisions of the divorce decree.   On July 15, 2010, the trial court signed an order granting Jones's motion as to Durham.   Because the order did not dispose of all parties and claims, it was not final and appealable at that time.   See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001) (subject to few mostly statutory exceptions, appeal may only be taken from final judgment or order disposing of all parties and claims in record).   By handwritten note faxed to the parties October 13, 2010, however, the trial judge informed Durham and Jones that she was granting Jones's motion to sever her claims against Durham from the remaining claims.   See Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex.2001) (per curiam) (severance of interlocutory judgment into separate cause of action makes interlocutory judgment final).   The trial judge directed Jones's counsel to draft the order, and counsel complied.   For reasons not clear from the record, the trial judge did not sign the order.   Although not believing the faxed note constituted a valid order making the enforcement order final and appealable, Durham filed his notice of appeal and stated he was appealing out of an abundance of caution.   See Goff v. Tuchscherer, 627 S.W.2d 397, 398–99 (Tex.1982) (per curiam) (letters to counsel do not constitute judgment, decision, or order from which appeal may be taken);  Perdue v. Patton Corp., 142 S.W.2d 596, 603 (Tex.App.-Austin 2004, no pet.) (letter to counsel granting motion for new trial filed with court clerk not operative order because it also directed counsel to draft order).

Upon review of the record and confirmation that no severance order existed in the record, we directed Durham and Jones to file letter briefs addressing our jurisdiction over this appeal.   Both responded and agree no valid severance order exists.

Because the complained-of order does not adjudicate all claims and parties, it is not final and appealable.   See Lehmann, 39 S.W.3d at 195.   And, because no severance order exists making it final and appealable, we do not have jurisdiction over this appeal.   See Diversified Fin., 63 S.W.3d at 795.   Accordingly, we dismiss the appeal.

110059F.P05

PER CURIAM