### 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 , JUD GE 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 th e 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 ye t here we are again, decades later. This appeal h as been thwarted in exactly the manner Justic e Hecht foretold in his concurrence in Lane Bank : B ecause the Court deems that Karets ’s request

to add finality language to the judg ment is not a request for “a ‘substantive cha nge,’ whatever
that me ans,” see id. at 315, the parties ’ proposed order of clarification seeking the addition of finality lang u age to the judgment did not operate to extend the trial court’s plenary power over

t he judgme nt

. See id. at 31 3 (holding that “ an y change to a judgment made by the trial court while it retains plenary jurisdiction will restart the appellate timetable under Rule 329b(h) , bu t only a motion seeking a substantive change will extend the appel late dead lines and the cour t’ s2 plenary power u nder Rule 329b(g) ” (citation omitted) (emphasis added) ) ; see also id. at 315

- 316 (Hecht, J., concurring) (noting that Rule 329b(g) ’ s lan gu age does not require motion to modify to request “ substa ntive ” c hange to ex tend p lenary power or ap p e llate deadlines)

. This c onclusion is even more problematic here given that the Court had previously dismissed Karets ’s first appeal , after determin ing that the appeal was premature
because the judgment disposed of only Karets ’s claims and th us was not f i nal and appe alab le

. S

ee 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 , 78 2

- 8 3 (Tex. 1995) ). After our dismissal , Ka rets returned to the t r i al court and sought a severance order ,

as Cr ow son instruct s
. 897 S. W.2d at 7 83 (explaining that if order in incomplete phase of probat e proceedings is interlocutory because it only disposes of certain parties and issues , “ [ f]or appellate purposes, it ma y b e made final by a severance order, if it meets the severance criteria ” ). T he trial
court si gned a severance order on October 4, 2021

. 1
D esiring a clear and unequivocal final judgment , Karets requeste d findings of f act
and conclu sions of law on Octo ber 2 5, 2021, not ing that “ the parties h a v e signed a proposed
order of clarification ” seekin g to modify the February 202 1 declaratory judgment by addi ng finality language

. On December 9, 2021, the trial court si gned it s “Order Regarding Final Judgment on Pet i t ion for Declaratory Judgment and Order After Trial Before the Court , ” which

1 The Court contends that Karets i s argu ing in her response to the Court ’ s j u ri sdictional inquiry that the severance order , like the February 2021 judgment, could not be a final judgment becaus e it lack ed finality language

. However , in her response Karets only argues that the February 2021 judgment lacked finality language

. S he 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 pl enary po wer
. I n her response , Karets does not ad dress what effect, if any, the se veran ce order h ad on the running of the appellate deadl ines

.3 added the following par agraph to the Februar y 2021 “ Final Judgment on Petition for Declaratory Judgment and Order After Trial Befor e the C ourt ” :
7. This is a final judgment pert a i ning 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 appe alable.

The parties a nd the trial court all operated as if the Decem b e r 2021 modified ju dgment was final , and a t no phase of this appeal have appellees argued that this Court lacks jurisdiction because
Karets filed an untimely notice of ap peal.
While the Court ha s determine d that the severance in this case in fa ct opera t e d to
make the February 2021 judgment final, in light of this Court ’ s prior opinion dismissing Karets ’ s first appeal, the possibility that a s everance order might be deemed not to meet the se verance criteria, an d th e lack of finality language in t he Febru a r y 2021 judgment , the parties ’ and the trial

court ’ s belt

- and

- suspenders appr oach to en suring the finality of the judg ment is understa ndable.
In Lehmann , and again in Elizondo , the Texas Sup reme Court attemp ted to resolve deca des of
confusion abo ut when a judgment is final for the purpose of appe llate deadlines , and yet t he issue
still persists

. Se e 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 cu riam). As a practical matter, I would ur g e the
Texas Supreme Court t o consider requiring that judgments intended to be final must contain finality language to be treated as final. If finality lang uage can render an other wise

- not

- final judgment fin al, the n perha ps it wo uld simpli fy appellate p ro c e dure and appellate courts ’ jurisdict ional a na lysis to require that judg ment s actually dispos ing of all pa rties and claims in a

c ase or in a discrete phase of a probat e pr oceedin g contain clear and unequivocal fina lity
la nguage stat ing th at the o utcome is f i nal and appealable

. See Lehmann , 39 S.W.3d at 206 ( “ A statement like, ‘ This judgment finally disposes of all parties and a ll claims and is appealable , ’ would4 leave no doubt about the court ’ s intention. ”); c f. In re R.R .K. , 590 S.W.3d 535, 538 (Tex. 2 01 9 ) (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 or der doe s not comport with the statute g ov e r ning final orders and is
otherwise inconclusive as to its intent ”).
Karets sought a judgment contain ing the critical language that can re nder an
otherwise

- not

- final judgment final to prevent this Court from dism i ss ing her appeal again

. See
Lehmann , 3 9 S .W.3d at 206 ( explaining that clear and unequivocal finality language must be given ef fect despite any other indication that parties did not intend judgment to be fi nal).
Because t he Court determines that th is req uest to modify the judg ment did not see k 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 Oc tober 4, 2021 severance
. 2

2 The Court states that “[t]o extend plenary p ower , a motion to mod ify, cor r ect or reform a judgment mus t assail the judgment , ” (slip op. at 4) (emphasis a dded) , relyi ng primarily on cases in which the post

- judgment movant sought relief that i s functionally equiv alent to a motion for new tria l . The only case cited by the Court i n which the p ost

- judgment movant sought less relief than a new tr ial or a vacat ur of the judgment is Lan e Bank Equip. Co. v. Smith S. Equip., Inc. , 10 S.W.3d 308, 3 13 (Tex. 2000) , in which the appel lee , after having summary judgment granted in i ts favor, m o ved for sanctions and rendition of a new final judgment

. The Te xas Supreme Court determined that “ a motion made after judgment to incorporate a sanction as a part of the final judgment does propos e a change to that judgmen t. Such a motion is, on its fac e , a motion to modify, correct or reform the existing judgment wi thin the meaning o f Rule 329b(g). ” Id. at 312. Similarly, in this case , by requesting the additi on of clea r and unequivocal finalit y language to the February 2021 judgment , Karets p roposed a chan ge to th e judgment that is more than a clerical change beca use the add iti on of such language requires judicial decisionmaking. See Tex as Dep ’ t of Transp. v. A.P.I. Pipe & Supply, LLC , 397 S.W.3d 162, 167 ( Tex. 2013) ( “A clerical er ror is one which does no t result from judicial reasoning or deter mination.” (quotin g Andrews v . K och , 702 S.W.2d 584, 585 (Tex.1986) (per curiam) ). O n its face , Karet s ’ s requ est sou ght a modification to the exi sting jud gment. “ A motion to modify, correct , or refor m a judgmen t ( as disti n guished from motion to correct the r ecord of a jud gment under Ru le 316 [ allowing correction of clerical mistakes] ) , ” Tex. R. Civ. P. 329b(g), must mean something more than only motions that attack the exist ing judgment. Ot herwise, the words

“ corr ect ” and “ refor m ” are rendered meaningless. See Bethel v. Quilling, S ela nder, Lownds,5 Th is in t urn results in the Court ’ s holding that K a rets ’ s January 20, 20 22 notice of appeal was untim ely because it was filed two days after the expiration of the 15

- day window in whi ch we may imply a motion for extension of the deadline. See Tex . R. App. P. 26.3; Verburgt v. Dorner , 959 S.W.2 d 615, 61 6

- 1 7 (Tex. 1997) ( holdin g motion for extension necessarily implied when appella nt acting in good faith files instrument in bona fide a tte mpt to invoke appellat e
court ’ s jurisdiction)

. The right to an appeal should not be “lost by an over ly tec h nical app lic a tion of the
law.” Lehmann , 39 S.W.3d at 205. Under these specific circumstances

— where the parties and
the trial court operated un der the assumption s that the October 2021 severance order did not
render the February 2021 judgm ent final, or t h at even i f t h e severance was effective to render the February 2021 judgmen t final, the trial court ’ s plenary power had been extended by the request to modify the j udgment to add finality lang uage

— I would conclude that the t rial court ’ s p le nary
power was e x tended by K a r ets ’ s substantive request for a modif ied judgmen t that was agreed to by appellees , especially given our prior dismissal o f 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 9 1a in man ner that would render certain aspects of r ule mean ingless)

.
3 H ad we instead abated that first app eal p endi ng th e tria l c ourt ’s severance order, the outcome here would be different. W hen we receive a prematurely file d notice of appeal in a civil case, w e are “not requi red to docket and hold an appeal o pen ind e f initely as ‘an appellate place holder unt il th ere is a final app ealable judgment.’ ” Fusion Indus., LLC v. Edgardo Madrid & Assocs. , LLC , 624 S.W.3d 843, 849 (T ex. App.

— El Paso 2021, no pet .) (quot ing Ganesan v. R eeves , 236 S.W.3d 816, 817 (Tex. A pp.

— Wac o 2007, pet. denied))

. Therefore, we gener ally dism iss f or wan t o f jurisdiction attempted appea ls from nonappealable interlocutory orders

. However, we may treat a case that is appealed befo re the t rial court renders a final judgment as a premature ly file d appeal and permit the defect to be cured. Id. ; Te x. R. App. P. 27.2 ; see also Lehmann v. Har

- Con Corp. , 3 9 S.W.3d 191, 206 (Tex. 2001) ( “ I f the appell ate court is uncertain about the inten t of the order, it can abate the appeal to permit clarific ation b y th e trial court. ” ). The Rules of Appellat e Pro ced u re ex pressl y a llow this, providing that in civil cases a prematurely filed notice of appeal “is effective and deemed filed on the day of, b ut after , the6 590 S.W.3d at 54 0 (explaining in case in which no party had challenged appell a te j urisd ict i on but appellate court had sua sponte questioned its jurisdi ction and dismissed appeal tha t if “ an order ’ s finality is not ‘ clear and unequiv ocal , ’ then a reviewing court must examine the record to
determine whether the trial court intended t h e order t o b e final ” ( ci ting In re Elizondo , 544 S.W.3d a t 827 (quoting Lehmann , 39 S.W.3d at 205

- 06 ) ) )

. Therefore, I would hold that the December 9, 2021 O rder of Clari fication that added finality language to the February 2 021 order
is the order that commences th e r u nn ing of the appellate timetable. Counting from D ecember 9, 2021, the last p ossible date that Karets could have file d the notice o f appeal was Tuesday, January 2 5 , 2022, meaning that her appeal was timely filed on January 20, 2022

. For this reason,
I wo u ld not dismiss the appeal for want of jurisd iction. Because I would not dismiss the appea l for want of jurisdic ti on, I would c onside r the merit s
. 4 O n the me rits, I would affirm the trial court ’ s judg ment de claring that Karets and
Victor were not inf or

m ally married an d were co - tenants in the real pro per ty located in Texas. In
her sole issue , K arets asserts that th e trial co urt er red by determining th at there was no legal

event that begins the period for perfecting the app e a l.” Tex. R. App. P. 27.1(a) ; Boyce v. Bo yce , 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 ’ co ntinu ed difficulties with determining issues of finality o f judgm e n ts and timeliness of appea ls in probate c ases, per hap s the be tte r practice in those cases would be to abate the m when jurisdictional questions arise

. C f. Bertucci v. Watkins , No. 03

- 20

- 000 58

- CV, 2 022 WL 3328986, at *1 (Tex. App.

— Austin Aug. 12, 2 022) (e n banc opin . & order) ( granting motion for en banc r econsiderat ion , reversing dismissal for want of jurisd iction , and abating appeal to allow parties to obtain final , appealable judgment), ap peal dec ided, No. 03

- 20

- 00058

- CV, 2022 WL 17998480 (Tex. A pp.

— Aus t i n De c. 30, 2022, no pet. h.) (mem. op.)

.
4 The a p peal was f ull y briefed by the parties befo re the Court notified Karets b y letter that it appeared that the Court might lack jurisdiction ov er the a pp ea l. The appellees neither raised the jurisdic tional i s sue in the i r briefing nor addressed the issue afte r it was r a ise d by the Court.7 re lationship conferring marital right s under both California la w and Texas la w bec a use the
evidence established that she and Victor “ met the requirements for entering into a m arriage under
eithe r Texas law o r the law of the state or country (“foreign state”) where the marriage purportedl y occ urred , ” rely ing on In re Est ate of Lov el ess , 6 4 S.W.3d 564, 575 (Tex. App.

— Texarkana 2001, no pet.) (addressing which jurisdiction ’ s law to app ly when determ ining
validit y of m arriage in case involving two competing marri ages )

. I believe that t he evidence supports the trial court ’ s de terminati on th a t Karets and
Victor di d not establish the elements of an informal marriage under Texas law because there is

n o evid en ce in the record to supp ort either that they agree d to b e married o r that they re si ded together in T exas
. S ee Tex. Fam. Cod e § 2.401 ( est a blishing that existence of informal marriage may be prove d by evidence that parties “ agreed to be marrie d a nd after t he agreement they lived together in this state as husband and wife and there repr esent ed to others that they

were married ” ). 5
Moreo ver, t he evidence in the record does not show that Karets and Victo r met the requirements for a marriage in Ca lifornia. I n s tead, Karets presented evidence that she and
V ictor had entered into a registere d do m estic part nership in California

. See Cal. Fam. Code § 297 ( defining “ [ d ] omestic partners ” as “ t wo adults who have chosen to share one another ’ s lives in an intimate and c ommitted relationship of mutual caring ” and requir ing that “ [ n] either

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

- sex couple s may exercise the fu nda menta l r ight t o marry in all states and also held th at “ t here is n o lawful bas i s for a State to refuse to recognize a l awful sa me - sex marriage performed in another State on the ground of its same

- sex character.” 576 U. S. 644, 675

- 76 (2015)

. The refore, t h at p a rt of S ec tion 2.401 limiting informal marri age to “t he marri a ge of a man a nd woman ” has been declared unconstit uti onal

. S ee Pidgeon v. Turner , 538 S.W.3d 73, 88 n.21 (Tex. 2017) , sup erseded b y statute on other grounds , Hughes v. Tom Green C ou nty , 573 S.W.3 d 212, 21 6 (Tex. 2019) )

.8 per son is marri ed to someone else or is a member of another do mesti c partnership with someone
else tha t has not been terminated ” ). U nder California law ,
A surviving regi stered domes ti c partner, following the death of the other partner, shall have the same rights, prot ections, and benefits, and shall be subject to the sa me responsibilities, obligations, and duties under law, whether they derive from statutes, administrativ e regulation s, court rules, government policies, common law, or any other provisions or source s 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 marri age under the requirements of both states, contending that the trial c ourt should apply California law and treat Karets as Vict or’ s sp ouse at the time of his death. On
appea l, Karets again contends that application of both Texas la w and Califo rn ia law “ result in the same outcome: that a legal relationship existed that confe rred on [Victor] and [Karets] the rights
of a ma r rie d cou p le .” She further asserts that if we determine that there would be a different
outcome under each state ’s law, this dif ference in outcomes raises a choice -of- law issue and we should apply California law. I disagree. W hile we look to the law of the stat e to resolve questions of parties ’

sta tus created by an act such as marriage or adoption, “q uestions of descent and di st ribution are controlled by the state where the realty of the estate is located. ” No rthwestern Nat’l Cas. Co.

v. Doucette , 817 S.W.2d 39 6 , 399 (Tex. App.

— Fort Worth 1 991, writ denied) (c iting Martinez

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

a doption status was go verned by law of Mexi co, where adoption occurred, but adopted ch ild ’ s ri ght t o inherit land in Texas was governed by laws of this state )). The legal question presented
here is not wh ether Karets a nd Vict or had a valid marriage (formal or informal) under California9 law. The e vide nce established that they had a registe red dome stic p artnership. Domestic partnership is not the same as marriage. Wh ile California law confers certain stat e - law rights

a nd bene fi ts on domestic partners that are t he same state

- law rights and benefits pro vided to
spouses , Texas does not provid e for or reco g nize domestic partnerships , see Tex. Fam. Code § 6.204 ( prohibiting rec ognition of c ivil un ions), 6 and th us our state ’ s law does not confer

stat e - law rights and benefits of spou s es on those parties wh o a re registered as d omestic partners
in another s tate.
Karets affirmativ ely demonstrated that she and Victor di d not enter into a

marr iag e under Cal if ornia l aw; they entered into a registered domestic partnership. While
Califor nia law confers upon dome stic partners the same rights and bene f its that spouses have , Texas law s of descent and distribution do not. Ther efore, I would affirm t he trial court ’ s judg me nt, and I dissent from the Court ’ s di smissal of the appeal for want of juris diction.

__________ __________________ ______________ Gisela D. Tria na, Just i ce Before Justices Baker, Triana, and Kelly
Filed: March 10 , 2023

6 T he United States Supr eme Cour t ’ s opin i on in Obergefell did not address or affect statutory pro visions banning reco gnition of civil union s other than marriage (regardless of the gender of the participants )

. 576 U. S. at 6 75

- 76 (h olding that “ there is no lawful basis for a State to refu s e to recog nize a lawfu l same - sex marriage performe d in anothe r S tate on the ground of it s same - sex characte r ” )

.