## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 16 - 00105 - CV

DONNIE R. MARTINEK D /B/A MARTINEK GRAIN & BIN S, INC., MARTINEK TRUCKING, A ND F.U. ENTERPRISES A/K/A F. U.E. APPELLANTS

V. ROBERT NEAL SCHLUTER , N & M SCHLUTER FAMILY LIMI TED PARTNERSHIP, AND RN & MK, INC. APPELLEES

---------- FROM THE 235TH DISTR ICT COURT OF COOKE C OUNTY

TRIAL COUR T NO. CV88

- 344

----------

AND NO. 02 - 16 - 00108 - CV

IN RE ROBERT NEAL SC HLUTER RELATOR2 ---------- ORIGINAL PROCEEDING TRIAL COURT NO. CV88

- 344

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### MEMORANDUM OPINION 1

---------- On the court’s own motion, we have combined Cause Nos. 02

- 16

- 00 105

- CV and 02

- 16

- 00 108

- CV because resolution of the issues contained within both

causes is intertwined

. In Cause No. 02

- 16

- 00 108

- CV, t he court has considered relator’s petition for issuance of writ o f mandamus a nd is of the opinion that relief should be denied. Based on the jury’s verdict, t he trial court signed its judgment on November 19, 2015. The record indicates that Real Parties in Intere s t, Donnie R. Martinek d/b/a Martinek Grain & Bins, Inc. , Martinek Trucking, and F.U. Enterprises a/k/a F.U.E., timely filed a motion for new trial electronically on December 21, 2015, which was the first Monday following the 30 th day after the trial court’s judgment . The 30th day fell on Saturday , December 19 , 2015. The timely filing of this motion for new trial , which was overruled by operation of law on the 75th day after judgment , extended the trial court’ s plenary power until March 3, 2016 (75 days plus 30 days) , which was the 105th day after the November 19, 2015 judgment

. See Tex. R. Civ. Pro c . Ann. 329b(c), (e). On

1 See Tex. R. App. P. 47.4.3

March 3, 201 6 , the trial court granted the motion for new trial via letter in which it stated, “The Court GRANTS Plaintiff’s Motion for New Trial. I will not sign Order as presented by Pla intiff. New Order should be submitted deleting findings under B page 4 and 5 of Proposed Order .” [Emphasis in original] The letter is stamped by the trial court clerk on March 3, 2016; cites the cause number and the style of case; and was sent to all par ties to the case. This case is distinguishable from this court’s holding in Barron v. Vanier , 190 S.W.3d 841, 846 (Tex. App.

— Fort Worth 2006 , no pet. ) (op. on reh’g) . In Barron , this court held that despite the use of “present language” in a letter by the trial court, the trial court’s letter indicating that it would be overruling a plea of privilege did not serve as an intended judgment. This court reasoned so because the letter was n ot stamped by the trial clerk. We conclude that the letter in this case is more akin to the letter found in Schaeffer Homes, Inc. v Esterak , where the El Paso court of appeals held that the trial court’s letter stating, “new trial is granted,” which was signed, dated, filed, and sent to all parties , was sufficient to evince t hat the trial court had actually rendered judgment granting the new trial. 792 S.W.2d 567, 568

– 69 (Tex. App.

— El Paso 1990, no writ). Accordingly, relator’s petition for issuance of writ of mandamus is denied

. For the reasons stated above, the related appe al i n Cause No. 02

- 16

- 00 10 5

- CV is moot because there is no appealable order from which such an4

appeal may be brought to this court. We therefor e dismiss the appeal as moot. See Wilkins v. Methodist Health Care Sys. , 160 S.W.3d 559, 563 (Tex. 2005) (holdi ng that when the trial court grants a motion for new trial, the trial court “essentially wipes the slate clean and starts over.”)

. Likewise, Appellee Robert Neal Schluter’s “Motion t o D ismiss A ppeal f or W ant of J urisdiction ” and “Appellant’s Motion f or Ex tension o f Time t o File Notice o f Appeal a nd Response
t o Appellee’s Motion t o Dismiss” are also moot and dismissed as such

. Id

.

/s/ Bill Meier BILL MEIER JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ. WALKER, J., filed a concurring opinion. DELIVERED: May 27 , 2016