TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00035-CV

Elena Karets, Appellant 

v. 

Estate of Victor Gumbs, Deceased, Appellee

FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY

NO. 19-1124-CP4A, THE HONORABLE JOHN B. MCMASTER, JUDGE PRESIDING

D I S S E N T I N G O P I N I O N

 I respectfully dissent. “Appellate procedure should not be tricky. It should be 

simple, it should be certain, it should make sense, and it should facilitate consideration of the 

parties’ arguments on the merits. . . . Simplicity and certainty in appellate procedure are 

nowhere more important than in determining the time for perfecting appeal.” Lane Bank Equip. 

Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000) (Hecht, J., concurring). And yet 

here we are again, decades later. This appeal has been thwarted in exactly the manner Justice 

Hecht foretold in his concurrence in Lane Bank: Because the Court deems that Karets’s request 

to add finality language to the judgment is not a request for “a ‘substantive change,’ whatever 

that means,” see id. at 315, the parties’ proposed order of clarification seeking the addition of 

finality language to the judgment did not operate to extend the trial court’s plenary power over 

the judgment. See id. at 313 (holding that “any change to a judgment made by the trial court 

while it retains plenary jurisdiction will restart the appellate timetable under Rule 329b(h), but 

only a motion seeking a substantive change will extend the appellate deadlines and the court’s 
2

plenary power under Rule 329b(g)” (citation omitted) (emphasis added)); see also id. at 315-316 

(Hecht, J., concurring) (noting that Rule 329b(g)’s language does not require motion to modify 

to request “substantive” change to extend plenary power or appellate deadlines).

This conclusion is even more problematic here given that the Court had 

previously dismissed Karets’s first appeal, after determining that the appeal was premature 

because the judgment disposed of only Karets’s claims and thus was not final and appealable. 

See Karets v. Gumbs, No. 03-21-00132-CV, 2021 WL 2834721, at *2 (Tex. App.—Austin 

July 8, 2021, no pet.) (mem. op.) (citing e.g., Crowson v. Wakeham, 897 S.W.2d 779, 782-83 

(Tex. 1995)). After our dismissal, Karets returned to the trial court and sought a severance order, 

as Crowson instructs. 897 S.W.2d at 783 (explaining that if order in incomplete phase of probate

proceedings is interlocutory because it only disposes of certain parties and issues, “[f]or appellate 

purposes, it may be made final by a severance order, if it meets the severance criteria”). The trial 

court signed a severance order on October 4, 2021.

1

Desiring a clear and unequivocal final judgment, Karets requested findings of fact 

and conclusions of law on October 25, 2021, noting that “the parties have signed a proposed 

order of clarification” seeking to modify the February 2021 declaratory judgment by adding

finality language. On December 9, 2021, the trial court signed its “Order Regarding Final 

Judgment on Petition for Declaratory Judgment and Order After Trial Before the Court,” which 

1 The Court contends that Karets is arguing in her response to the Court’s jurisdictional 

inquiry that the severance order, like the February 2021 judgment, could not be a final judgment 

because it lacked finality language. However, in her response Karets only argues that the 

February 2021 judgment lacked finality language. She further argues that the request in her 

motion for severance seeking to add finality language to the February 2021 judgment was a 

motion requesting a substantive change in the judgment that served to extend the trial court’s 

plenary power. In her response, Karets does not address what effect, if any, the severance order

had on the running of the appellate deadlines.
3

added the following paragraph to the February 2021 “Final Judgment on Petition for Declaratory 

Judgment and Order After Trial Before the Court”:

7. This is a final judgment pertaining to the declaratory judgment action filed by

Elena Karets. This judgment disposes of all parties and claims at issue in this 

cause (19-1124-CP4A) [the new cause number], and is appealable.

The parties and the trial court all operated as if the December 2021 modified judgment was final, 

and at no phase of this appeal have appellees argued that this Court lacks jurisdiction because 

Karets filed an untimely notice of appeal.

While the Court has determined that the severance in this case in fact operated to 

make the February 2021 judgment final, in light of this Court’s prior opinion dismissing Karets’s 

first appeal, the possibility that a severance order might be deemed not to meet the severance 

criteria, and the lack of finality language in the February 2021 judgment, the parties’ and the trial 

court’s belt-and-suspenders approach to ensuring the finality of the judgment is understandable. 

In Lehmann, and again in Elizondo, the Texas Supreme Court attempted to resolve decades of 

confusion about when a judgment is final for the purpose of appellate deadlines, and yet the issue 

still persists. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001); In re 

Elizondo, 544 S.W.3d 824, 827 (Tex. 2018) (per curiam). As a practical matter, I would urge the 

Texas Supreme Court to consider requiring that judgments intended to be final must contain 

finality language to be treated as final. If finality language can render an otherwise-not-final 

judgment final, then perhaps it would simplify appellate procedure and appellate courts’ 

jurisdictional analysis to require that judgments actually disposing of all parties and claims in a 

case or in a discrete phase of a probate proceeding contain clear and unequivocal finality 

language stating that the outcome is final and appealable. See Lehmann, 39 S.W.3d at 206 (“A 

statement like, ‘This judgment finally disposes of all parties and all claims and is appealable,’ would 
4

leave no doubt about the court’s intention.”); cf. In re R.R.K., 590 S.W.3d 535, 538 (Tex. 2019)

(holding that “an order lacking the unmistakable language of finality—that it resolves all claims 

between and among all parties and is final and appealable—is ambiguous in a suit under the 

Family Code when the order does not comport with the statute governing final orders and is 

otherwise inconclusive as to its intent”).

Karets sought a judgment containing the critical language that can render an 

otherwise-not-final judgment final to prevent this Court from dismissing her appeal again. See 

Lehmann, 39 S.W.3d at 206 (explaining that clear and unequivocal finality language must be 

given effect despite any other indication that parties did not intend judgment to be final). 

Because the Court determines that this request to modify the judgment did not seek a substantive 

change in the judgment, it concludes the trial court’s plenary power was not extended under Rule 

329b(g), and therefore, Karets’s appellate deadlines run from the October 4, 2021 severance.

2 

2 The Court states that “[t]o extend plenary power, a motion to modify, correct or reform 

a judgment must assail the judgment,” (slip op. at 4) (emphasis added), relying primarily on 

cases in which the post-judgment movant sought relief that is functionally equivalent to a motion 

for new trial. The only case cited by the Court in which the post-judgment movant sought less 

relief than a new trial or a vacatur of the judgment is Lane Bank Equip. Co. v. Smith S. Equip., 

Inc., 10 S.W.3d 308, 313 (Tex. 2000), in which the appellee, after having summary judgment 

granted in its favor, moved for sanctions and rendition of a new final judgment. The Texas 

Supreme Court determined that “a motion made after judgment to incorporate a sanction as a 

part of the final judgment does propose a change to that judgment. Such a motion is, on its face, 

a motion to modify, correct or reform the existing judgment within the meaning of Rule 

329b(g).” Id. at 312. Similarly, in this case, by requesting the addition of clear and unequivocal 

finality language to the February 2021 judgment, Karets proposed a change to the judgment that 

is more than a clerical change because the addition of such language requires judicial 

decisionmaking. See Texas Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 167 

(Tex. 2013) (“A clerical error is one which does not result from judicial reasoning or 

determination.” (quoting Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986) (per curiam)). On 

its face, Karets’s request sought a modification to the existing judgment. “A motion to modify, 

correct, or reform a judgment (as distinguished from motion to correct the record of a judgment 

under Rule 316 [allowing correction of clerical mistakes]),” Tex. R. Civ. P. 329b(g), must mean 

something more than only motions that attack the existing judgment. Otherwise, the words

“correct” and “reform” are rendered meaningless. See Bethel v. Quilling, Selander, Lownds, 
5

This in turn results in the Court’s holding that Karets’s January 20, 2022 notice of appeal was 

untimely because it was filed two days after the expiration of the 15-day window in which we 

may imply a motion for extension of the deadline. See Tex. R. App. P. 26.3; Verburgt v. Dorner, 

959 S.W.2d 615, 616-17 (Tex. 1997) (holding motion for extension necessarily implied when 

appellant acting in good faith files instrument in bona fide attempt to invoke appellate 

court’s jurisdiction).

The right to an appeal should not be “lost by an overly technical application of the 

law.” Lehmann, 39 S.W.3d at 205. Under these specific circumstances—where the parties and 

the trial court operated under the assumptions that the October 2021 severance order did not 

render the February 2021 judgment final, or that even if the severance was effective to render the 

February 2021 judgment final, the trial court’s plenary power had been extended by the request 

to modify the judgment to add finality language—I would conclude that the trial court’s plenary 

power was extended by Karets’s substantive request for a modified judgment that was agreed to 

by appellees, especially given our prior dismissal of her premature appeal.

3 Cf. In re R.R.K., 

Winslett & Moser, P.C., 595 S.W.3d 651, 655 (Tex. 2020) (refusing to interpret Texas Rule of 

Civil Procedure 91a in manner that would render certain aspects of rule meaningless).

3 Had we instead abated that first appeal pending the trial court’s severance order, the 

outcome here would be different. When we receive a prematurely filed notice of appeal in a civil

case, we are “not required to docket and hold an appeal open indefinitely as ‘an appellate place 

holder until there is a final appealable judgment.’” Fusion Indus., LLC v. Edgardo Madrid & 

Assocs., LLC, 624 S.W.3d 843, 849 (Tex. App.—El Paso 2021, no pet.) (quoting Ganesan 

v. Reeves, 236 S.W.3d 816, 817 (Tex. App.—Waco 2007, pet. denied)). Therefore, we generally

dismiss for want of jurisdiction attempted appeals from nonappealable interlocutory orders.

However, we may treat a case that is appealed before the trial court renders a final judgment as a 

prematurely filed appeal and permit the defect to be cured. Id.; Tex. R. App. P. 27.2; see also 

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (“If the appellate court is uncertain 

about the intent of the order, it can abate the appeal to permit clarification by the trial court.”).

The Rules of Appellate Procedure expressly allow this, providing that in civil cases a 

prematurely filed notice of appeal “is effective and deemed filed on the day of, but after, the 
6

590 S.W.3d at 540 (explaining in case in which no party had challenged appellate jurisdiction 

but appellate court had sua sponte questioned its jurisdiction and dismissed appeal that if “an 

order’s finality is not ‘clear and unequivocal,’ then a reviewing court must examine the record to 

determine whether the trial court intended the order to be final” (citing In re Elizondo,

544 S.W.3d at 827 (quoting Lehmann, 39 S.W.3d at 205-06))). Therefore, I would hold that the 

December 9, 2021 Order of Clarification that added finality language to the February 2021 order 

is the order that commences the running of the appellate timetable. Counting from December 9, 

2021, the last possible date that Karets could have filed the notice of appeal was Tuesday,

January 25, 2022, meaning that her appeal was timely filed on January 20, 2022. For this reason, 

I would not dismiss the appeal for want of jurisdiction.

Because I would not dismiss the appeal for want of jurisdiction, I would consider

the merits.

4 On the merits, I would affirm the trial court’s judgment declaring that Karets and 

Victor were not informally married and were co-tenants in the real property located in Texas. In 

her sole issue, Karets asserts that the trial court erred by determining that there was no legal 

event that begins the period for perfecting the appeal.” Tex. R. App. P. 27.1(a); Boyce v. Boyce, 

No. 01-21-00166-CV, 2022 WL 17419376, at *8 (Tex. App.—Houston [1st Dist.] Dec. 6, 2022, 

no pet. h.) (mem. op.). Given parties’ and courts’ continued difficulties with determining issues 

of finality of judgments and timeliness of appeals in probate cases, perhaps the better practice in 

those cases would be to abate them when jurisdictional questions arise. Cf. Bertucci v. Watkins, 

No. 03-20-00058-CV, 2022 WL 3328986, at *1 (Tex. App.—Austin Aug. 12, 2022) (en banc 

opin. & order) (granting motion for en banc reconsideration, reversing dismissal for want of 

jurisdiction, and abating appeal to allow parties to obtain final, appealable judgment), appeal 

decided, No. 03-20-00058-CV, 2022 WL 17998480 (Tex. App.—Austin Dec. 30, 2022, no 

pet. h.) (mem. op.).

4 The appeal was fully briefed by the parties before the Court notified Karets by letter 

that it appeared that the Court might lack jurisdiction over the appeal. The appellees neither 

raised the jurisdictional issue in their briefing nor addressed the issue after it was raised by 

the Court.
7

relationship conferring marital rights under both California law and Texas law because the 

evidence established that she and Victor “met the requirements for entering into a marriage under 

either Texas law or the law of the state or country (“foreign state”) where the marriage 

purportedly occurred,” relying on In re Estate of Loveless, 64 S.W.3d 564, 575 (Tex. App.—

Texarkana 2001, no pet.) (addressing which jurisdiction’s law to apply when determining 

validity of marriage in case involving two competing marriages).

I believe that the evidence supports the trial court’s determination that Karets and 

Victor did not establish the elements of an informal marriage under Texas law because there is 

no evidence in the record to support either that they agreed to be married or that they resided

together in Texas. See Tex. Fam. Code § 2.401 (establishing that existence of informal marriage 

may be proved by evidence that parties “agreed to be married and after the agreement they lived 

together in this state as husband and wife and there represented to others that they 

were married”).5

Moreover, the evidence in the record does not show that Karets and Victor met 

the requirements for a marriage in California. Instead, Karets presented evidence that she and 

Victor had entered into a registered domestic partnership in California. See Cal. Fam. Code

§ 297 (defining “[d]omestic partners” as “two adults who have chosen to share one another’s 

lives in an intimate and committed relationship of mutual caring” and requiring that “[n]either 

5 In Obergefell v. Hodges, the United States Supreme Court held that same-sex couples

may exercise the fundamental right to marry in all states and also held that “there is no lawful 

basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on 

the ground of its same-sex character.” 576 U.S. 644, 675-76 (2015). Therefore, that part of 

Section 2.401 limiting informal marriage to “the marriage of a man and woman” has been

declared unconstitutional. See Pidgeon v. Turner, 538 S.W.3d 73, 88 n.21 (Tex. 2017), 

superseded by statute on other grounds, Hughes v. Tom Green County, 573 S.W.3d 212, 216 

(Tex. 2019)).
8 

person is married to someone else or is a member of another domestic partnership with someone 

else that has not been terminated”). Under California law, 

A surviving registered domestic partner, following the death of the other partner, 

shall have the same rights, protections, and benefits, and shall be subject to the 

same responsibilities, obligations, and duties under law, whether they derive from 

statutes, administrative regulations, court rules, government policies, common 

law, or any other provisions or sources of law, as are granted to and imposed upon 

a widow or a widower.

Cal. Fam. Code § 297.5. 

 Karets argued in her summary-judgment motion that she met her burden of 

proving up the marriage under the requirements of both states, contending that the trial court 

should apply California law and treat Karets as Victor’s spouse at the time of his death. On 

appeal, Karets again contends that application of both Texas law and California law “result in the 

same outcome: that a legal relationship existed that conferred on [Victor] and [Karets] the rights 

of a married couple.” She further asserts that if we determine that there would be a different 

outcome under each state’s law, this difference in outcomes raises a choice-of-law issue and we 

should apply California law.

 I disagree. While we look to the law of the state to resolve questions of parties’ 

status created by an act such as marriage or adoption, “questions of descent and distribution are 

controlled by the state where the realty of the estate is located.” Northwestern Nat’l Cas. Co. 

v. Doucette, 817 S.W.2d 396, 399 (Tex. App.—Fort Worth 1991, writ denied) (citing Martinez 

v. Gutierrez, 66 S.W.2d 678 (Tex. Comm’n App. 1933, holding approved) (holding that child’s 

adoption status was governed by law of Mexico, where adoption occurred, but adopted child’s 

right to inherit land in Texas was governed by laws of this state)). The legal question presented 

here is not whether Karets and Victor had a valid marriage (formal or informal) under California 
9

law. The evidence established that they had a registered domestic partnership. Domestic 

partnership is not the same as marriage. While California law confers certain state-law rights 

and benefits on domestic partners that are the same state-law rights and benefits provided to

spouses, Texas does not provide for or recognize domestic partnerships, see Tex. Fam. Code 

§ 6.204 (prohibiting recognition of civil unions),6 and thus our state’s law does not confer 

state-law rights and benefits of spouses on those parties who are registered as domestic partners 

in another state.

Karets affirmatively demonstrated that she and Victor did not enter into a 

marriage under California law; they entered into a registered domestic partnership. While 

California law confers upon domestic partners the same rights and benefits that spouses have, 

Texas laws of descent and distribution do not. Therefore, I would affirm the trial court’s 

judgment, and I dissent from the Court’s dismissal of the appeal for want of jurisdiction.

__________________________________________

Gisela D. Triana, Justice

Before Justices Baker, Triana, and Kelly

Filed: March 10, 2023

6 The United States Supreme Court’s opinion in Obergefell did not address or affect

statutory provisions banning recognition of civil unions other than marriage (regardless of the 

gender of the participants). 576 U.S. at 675-76 (holding that “there is no lawful basis for a State

to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its

same-sex character”).