text:
    In re Pervez DAREDIA, Relator.
    No. 09-1014.
    Supreme Court of Texas.
    July 2, 2010.
    Steven S. Snelson, Gerstle Minissale & Snelson, LLP, Dallas TX, for Relator.
    Alan R. Scheinthal, Scheinthal & Kouts LLP, Houston TX, for Real Party in Inter-ést American Express Centurion Bank.
   PER CURIAM.

American Express Centurion Bank and American Express Bank, FSB (“American Express”) sued Pervez Daredia and Map Wireless, Inc. to recover $769,789.91 due on three credit card accounts. Daredia answered, but Map Wireless did not, and American Express moved the court “to award ... the relief requested ... by signing and entering the attached DEFAULT JUDGMENT.” That judgment, drafted by American Express’s counsel, recited Map Wireless’s default and awarded damages and attorney fees against Map Wireless. The last two sentences of the judgment stated: “All relief not expressly granted herein is denied. This judgment disposes of all parties and all claims in this cause of action and is therefore FINAL.” The trial court signed the judgment, and no one appealed. More than fifteen months later, American Express moved for judgment nunc pro tunc to correct what it called “typographical errors on behalf of the attorney in charge”, who “should have used the word ‘Interlocutory’ in both the motion and judgment”, so that the case could proceed against Daredia. Daredia responded that the judgment was final and that the court had lost plenary power over it thirty days after it was signed. See Tex.R. Civ. P. 329b. But the court granted the motion, and the court of appeals denied Daredia mandamus relief. 317 S.W.3d 274 (Tex.App.-Fort Worth 2009) (mem. op.).

The court of appeals concluded that the judgment “is ambiguous on its face” because it “fails to address any of American Express’s claims against Daredia, yet it contains language that clearly and unequivocally indicates that it is a final judgment.” Id. at 277. Given this ambiguity, the court held that “the judgment was interlocutory”, it “did not resolve American Express’s claims against Daredia”, and therefore “the trial court retains jurisdiction over this case.” Id. The court relied on our decision in Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001), but Lehmann is to the contrary. There we explained that

the language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. It is not enough, of course, that the order or judgment merely use the word “final”. The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself. But if that intent is clear from the order, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment.

Id. at 200. We held that “the inclusion of a Mother Hubbard clause — by which we mean the statement, ‘all relief not granted is denied’, or essentially those words— does not indicate that a judgment rendered without a conventional trial is final for purposes of appeal.” Id. at 203-204. But we suggested that “[a] statement like, ‘This judgment finally disposes of all parties and all claims and is appealable’, would leave no doubt about the court’s intention” to finally dispose of the case. Id. at 206. And we cautioned that

if the language of the order is clear and unequivocal, it must be given effect despite any other indications that one or more parties did not intend for the judgment to be final. An express adjudication of all parties and claims in a case is not interlocutory merely because the record does not afford a legal basis for the adjudication. In those circumstances, the order must be appealed and reversed.

Id.

We agree with the court of appeals that the language of the judgment in this case clearly and unequivocally indicates that it is intended to be final. The use of the word “final” in the last sentence is slightly less clear than “appealable”, the example offered in Lehmann. A judgment might possibly be said to be “final” as to only some claims or parties, while it would not be “appealable” unless it disposed of all. But the language of this judgment is clear enough. The court of appeals’ holding that the failure to mention Daredia creates an ambiguity that makes the judgment interlocutory is contradicted by Lehmann.

American Express argues that, in Leh-mann’s words, “[t]o determine whether an order disposes of all pending claims and parties, it may of course be necessary for the appellate court to look to the record in the case”, id. at 205-206, and here the record clearly shows that a default judgment against Daredia, whose answer was on file, would have been improper. Further, American Express argues, the trial court itself recognized that the judgment was not intended to affect the claim against Daredia because it corrected (by initialed strikeouts) two typographical errors in the judgment as follows:

IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that said Defendant, and Map Wireless, Inc., is indebted to the Plaintiff, American Express Centurion Bank and American Express Bank, FSB, and that the Plaintiff is entitled to recover from the Defendant, and Map Wireless, Inc., the principal amount sued for, accrued interest, reasonable attorney fees, and all court costs.

The plain implication of these changes, American Express argues, is that the judgment was intended only to affect Map Wireless. The trial court simply erred in failing to strike the last two sentences.

But the lack of any basis for rendering judgment against Daredia did not preclude dismissing him from the case. Even if dismissal was inadvertent, as American Express insists, it was nonetheless unequivocal, and therefore effective. American Express complains that the trial court never made a substantive disposition of its claims against Daredia, but dismissal is not a ruling on the merits. We conclude that the judgment by its clear terms disposed of all claims and parties and was therefore final.

Even so, American Express contends that the dismissal of its claim against Daredia was a clerical error, not a judicial one, which could still be corrected after the judgment became final. But only errors made in entering a judgment are clerical; an error in rendition is judicial. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). “[Provisions alleged to have been inserted by mistake of the attorney nevertheless become a part of the court’s judgment and therefore are judicial errors when thus rendered in writing by the court.” Dikeman v. Snell, 490 S.W.2d 183, 185-186 (Tex.1973). By American Express’s own admission, that fairly characterizes what occurred in this case.

American Express also argues that the error was clerical because a trial court has a ministerial duty to grant no more relief than a party requests, at least by way of dismissal or nonsuit, and if it does so, a party is entitled to correction nunc pro tunc. See In re Bridges, 28 S.W.3d 191, 194-195 (Tex.App.-Fort Worth 2000) (orig. proceeding). But see Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010) (holding that a dismissal with prejudice after nonsuit, while erroneous, is not void); In re ROC Pretrial, 75 S.W.3d 15, 17-18 (Tex.App.-San Antonio 2001, no pet.) (holding that the necessary import of Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210 (Tex.1990) (per curiam), is that an order dismissing more parties than the plaintiff nonsuited is not void). Even if American Express’s argument were correct, and we are not sure it is, it finds no application in this case. The relief American Express requested in its motion for default judgment was that the trial court would sign the judgment attached to the motion, and that is what the trial court did. The error, if there was one, was in the request for and rendition of judgment and thus could not be corrected nunc pro tunc after the trial court lost plenary jurisdiction.

American Express complains that the judgment, if not corrected, will give Dare-dia a windfall, but being given the relief an opponent requests can hardly be considered a windfall. Further, had American Express acted promptly in pursuing its claim against Daredia, before and after suit, counsel’s error in allowing the claim to be dismissed could have been rectified, either by timely moving to reinstate the case, or perhaps by refiling the lawsuit. See Christensen v. Chase Bank USA, N.A., 304 S.W.3d 548, 554 (Tex.App.-Dallas 2009, pet. filed) (a general denial of relief is without prejudice). But see Alvarado v. Magic Valley Elec. Co-op, Inc., 784 S.W.2d 729, 733 (Tex.App.-San Antonio 1990, writ denied) (a general denial of relief is a decision on the merits).

We conclude that the trial court clearly abused its discretion in setting aside a judgment after its plenary power expired. Daredia has no adequate remedy at law. See In re Dickason, 987 S.W.2d 570, 571 (Tex.1998) (per curiam) (granting mandamus relief to set aside an order granting a motion for new trial filed after the trial court’s plenary power had expired); see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136-137 (Tex.2004). Accordingly, without hearing oral argument, we conditionally grant Daredia’s petition for mandamus and direct the trial court to vacate its order dated February 24, 2009, granting American Express’s motion for judgment nunc pro tunc and vacating the default judgment dated July 2, 2007. Tex. R.App. P. 52.8(c). We are confident that the trial court will promptly comply; our writ will issue only if it does not.

Justice LEHRMANN did not participate in the decision.

      . In the interim, the only actions taken in the case by American Express were to substitute counsel and to serve on Daredia “Judgment Creditor’s Interrogatories in Aid of Judgment”. Daredia immediately responded that he had been discharged by the judgment, which was final. Six months later, American Express moved for judgment nunc pro tunc.


source: Caselaw Access Project

author: Justice HECHT

license: Public Domain

text:
    In the Interest of B.G., C.W., E.W., B.B.W., and J.W., Children.
    No. 07-0960.
    Supreme Court of Texas.
    Argued Sept. 8, 2009.
    Decided July 2, 2010.

      Brent L. Watkins, Zeleskey Cornelius Hallmark Roper & Hicks, Lufkin, for Petitioner.
    Duke Elton Hooten, Texas Dept, of Protective & Regulatory Serv., Trevor Allen Woodruff, Michael C. Shulman, Texas Department of Family and Protective Services, Austin, for Respondent.
    Michelle Wood Charanza, Lufkin, for Other Interested Party Michelle Charanza.
    Jennifer Dawn Armstrong, Office of District Attorney, Lufkin, for Other Interested Party Dawn Armstrong.
    Dewey Britt, Tex. Dept. Family & Protective, Lubbock, for Other Interested Party Dewey Duane Britt.
    CASA of Angelina County, Lufkin, pro se.
   Justice HECHT

delivered the opinion of the Court.

In cases brought by the government for termination of parental rights, section 263.405 of the Texas Family Code prescribes shortened post-trial deadlines and special procedures to discourage frivolous appeals and expedite finality, minimizing the time a child must spend in temporary care. Section 263.405© limits an appeal to the issues included in a statement filed in the trial court within fifteen days after the judgment is signed. But if an indigent parent who has requested appointed counsel fails to timely file the required statement, the statutory limitation cannot, consistent with due process, preclude an appeal complaining of ineffective assistance. So we held in In re J.O.A. For essentially the same reasons, we now hold that due process does not allow the lack of the required statement to be the basis for denying the parent an appellate record. Accordingly, we reverse the judgment of the court of appeals and remand the case to that court for further proceedings in accordance with this opinion.

I

A

Section 263.405(a) provides that an appeal from a judgment in a parental rights termination case brought by the government is accelerated under the Texas Rules of Appellate Procedure. Section 263.405(b) requires that a motion for new trial be filed within fifteen days from the date the judgment is signed, instead of the usual thirty, and requires that within the same period “a statement of the point or points on which the party intends to appeal” must be filed. The statute does not provide for an extension of the deadline. The statement of appellate points is crucial. Section 263.405(i) states:

The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.

Notice of appeal and an appellant’s affidavit of indigence must be filed within twenty days after the judgment is signed. (A party’s indigent status in the trial court does not establish indigence on appeal.) This deadline is not extended by the filing of post-trial motions or requests for findings and conclusions, but the appellate court can grant a fifteen-day extension. Within thirty days after the judgment is signed, section 268.405(d) requires the trial court to “hold a hearing” to determine whether a new trial should be granted, whether any claim of indigence should be sustained, and whether the appeal is frivolous. A parent whose claim of indigence is not denied within thirty-six days after the judgment is signed is considered to be indigent.

Ordinarily in an accelerated appeal, the record is due ten days after the notice of appeal, but in a parental rights termination case, preparation of the record for an indigent’s appeal cannot even begin until the trial court has determined at the hearing required by section 268.405(d) that an appeal will not be frivolous, and section 263.405(f) allows the appellate record to be filed up to sixty days after the judgment is signed. Thus, an indigent parent must move for new trial, file a statement of appellate points, and convince the trial court that appeal is not frivolous, all without a reporter’s record.

An indigent parent is entitled to appointed counsel in parental rights termination cases, and that statutory right, we have held, “embodies the right to effective counsel”. There are no statutory directives for when or how the appointment is to be made. Once appointed, an attorney cannot withdraw without good cause and the court’s permission, and withdrawal is subject to ethical restrictions. It is not uncommon for appellate counsel to be substituted for trial counsel, but appellate counsel cannot be appointed until the appellant has been determined to be indigent on appeal. An attorney who was not present at trial often faces significant difficulties in determining what grounds there may be for a motion for new trial or appeal within the prescribed time-frame.

B

The Texas Department of Family and Protective Services sued petitioner Lester Williams in February 2005 to terminate his rights in his four children on the ground that he had endangered their well-being. From the scant record before us, which does not include a reporter’s record of the trial, it appears that Williams, an inmate, was permitted to discharge his appointed counsel and proceed to trial pro se. The trial court signed a judgment terminating Williams’s parental rights on July 18, 2006. The docket sheet reflects that on July 20 the trial court appointed attorney Claude Welch to represent Williams, and we infer from this notation that Williams indicated an intention to appeal and requested appointment of counsel, and that Welch was actually appointed. But the record does not contain an order appointing Welch or reflect that he took any action on behalf of Williams. The record does contain an order dated August 9 appointing attorney Brent Watkins to represent Williams. Watkins stated at oral argument that the trial court accommodated Welch’s request to be relieved of the appointment and that Welch never actually represented Williams, but our record is silent on the subject.

Watkins’s appointment came twenty-two days after the judgment was signed, and thus after the deadlines for filing a statement of appellate points, a notice of appeal, and an affidavit of indigence. Watkins filed Williams’s notice of appeal on August 14 and his affidavit of indigence on August 23, and was granted extensions for both. Watkins filed a statement of appellate points on September 11, forty days late. The statement set out two points of appeal: first, that Williams had not been allowed to offer family members’ testimony about efforts he had made to provide his children physical and emotional care, to refute the charges that he had placed his children, or allowed them to remain, in dangerous conditions; and second, that the evidence for termination was not clear and convincing.

The trial court held a hearing on September 12, fifty-six days after the judgment was signed. The record does not reflect a reason for the delay. By that time, since the trial court had not denied Williams’s claim of indigence, he was considered to be indigent. The trial court ordered that because Williams had not filed a statement of appellate points by the statutory deadline, an appellate record was “not needed to decide any issue presented for the appeal”, and found that “no substantial question for appellate review has been presented”. The court of appeals affirmed, and we granted Williams’s petition for review.

II

Williams contends that by precluding his appeal, section 263.405 violates due process. We faced a similar contention in In re J.O.A There, an indigent parent’s appointed counsel was permitted to withdraw after the trial, and new counsel was appointed, but not until after the statement of appellate points was due. On appeal, the parent complained that he had been denied effective assistance of counsel. Section 263.405(i) foreclosed that complaint because it was not included in a timely filed statement of points, even though the lack of a statement was the basis of the complaint. We held that by precluding the parent from complaining on appeal of ineffective assistance of counsel in those circumstances, section 263.405(i) violated due process. We further held, based on a full record, that the parent had been denied effective assistance because his appellate issue, insufficiency of the evidence, would have required reversal had it been included in a timely filed statement of appellate points.

The present case differs from J.O.A. in that it is unclear whether Williams was represented by counsel in the fifteen days he had to file a statement of appellate points. Attorney Welch was appointed two days after the judgment was signed, but the record does not reflect whether he actually undertook to represent Williams or, as Watkins tells us, was allowed to withdraw. The Department insists that we must presume Welch represented Williams until Watkins was appointed, but the issue is immaterial. Whether Williams failed to file the statement required for appeal because he had no counsel or ineffective counsel, he is entitled under J.O.A. to complain on appeal of ineffective assistance.

The important difference between this case and J.O.A. is that a complaint of ineffective assistance of counsel is foreclosed by the trial court’s denial of an appellate record as a consequence of Williams’s failure to file a statement of points. We explained in J.O.A. that “[a]n ineffective assistance of counsel claim ... requires more than merely showing that appointed counsel was ineffective.” There must also be “a showing of a deficient performance by counsel so serious as to deny the defendant a fair and reliable trial.” To make this showing, Williams would be required to demonstrate that he could prevail on appeal on either of the two issues raised in his late-filed statement of points: that he was not allowed to call other witnesses, and that the evidence for termination was not clear and convincing. Without a reporter’s record, it would be impossible to show that either issue has merit. The parent in J.O.A. was able to make the required showing because he had been provided a full record despite section 263.405®.

Williams has not asserted ineffective assistance of counsel, but given that the assertion would fail as a matter of law without an appellate record, he need not do so to complain that section 263.405 has operated to deprive him of an appeal. In essence, Williams’s complaint is that because a statement of points was not timely filed, despite his entitlement to effective representation by appointed counsel, the trial court determined that no issues could be raised on appeal, that any appeal would therefore be frivolous, and consequently, no record should be prepared. Importantly, the trial court did not determine that the issues raised in the late-filed statement of points were frivolous; the trial court determined only that the lateness of the filing made the appeal frivolous. Although Williams’s argument is not cast as a complaint of ineffective assistance of counsel, the effect is the same. Like the parent in J.O.A., Williams has been deprived of an appeal because of section 263.405®. That deprivation is no less a denial of due process merely because it results indirectly from the lack of an appellate record.

The Department argues that there can be no denial of due process when there is no constitutional right to an appeal. But once appellate review is afforded, it cannot be unduly restricted. As the United States Supreme Court has reiterated: “ ‘This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.’” Whether section 263.405’s requirements pose an impermissible impediment to appeal in this case depends on three factors: “the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure”.

The Department acknowledges that the private interests affected in a parental rights termination case are of the highest order. As the Supreme Court has said, natural parents have a “fundamental liberty interest ... in the care, custody, and management of their child [which] does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” We have said that “termination cases implicate fundamental liberties” and that “a parent’s interest in maintaining custody of and raising his or her child is paramount”.

The Department argues that the risk of error created by section 263.405 is small and it does not often occur. An inability to file a statement of appellate points by the statutory deadline has been an issue in only a few cases since the statute was enacted in 2001 and paragraph (i) added in 2005. But frequency is not the only measure of risk; the magnitude of harm must also be considered, and the harm in losing all right to an appeal by missing a deadline by a few days is potentially severe. Also, in considering whether section 263.405 has worked a denial of due process as applied to Williams, we ignore the almost nonexistent risk of harm to the Department. In circumstances like those in this case, the risk that an appeal will be improperly denied is much greater. Indeed, this is the second case of its kind to be decided by this Court in a year. The risk of error posed by section 263.405 in cases in which an indigent parent is represented by counsel appointed after trial is significant.

Finally, the Department argues that section 263.405 serves the important state interest of bringing finality to parental rights termination proceedings, keeping foster care from being unnecessarily prolonged, and providing stability and certainty to families and children. We do not question the State’s interest in avoiding delay in these proceedings, but that interest must be viewed in context. Section 268.401 allows a year for trial, plus an additional 180 days in extraordinary circumstances. Williams’s case was tried and adjudicated in the eighteenth month after it was filed. Section 263.405(d) allows the trial court thirty days to hold a hearing to determine whether an appeal would be frivolous, and section 263.405(f) allows sixty days for filing the appellate record. An inflexible fifteen-day deadline for filing a statement of appellate points is not essential to achieve expedition. But more to the point, the unavailability of a record to show whether an indigent parent was denied effective assistance of counsel and precluded from appeal without regard to the merits of his arguments serves no legitimate interest we can see.

This does not mean that a reporter’s record must be prepared in every parental rights termination case involving an indigent parent. If a trial court determines in a section 263.405(d) hearing that an appeal on the issues attempted to be raised by the parent would be frivolous, review is limited to the record of that hearing. Here, the trial court determined that Williams had presented no substantial question for appellate review, not because the issues in his statement of points challenging the sufficiency of the evidence and exclusion of witnesses were frivolous, but because the statement was not timely filed. The judge who presided at the section 263.405(d) hearing was not the judge who presided over the trial and may thus have been reluctant to assess the evidence at trial, which Williams’s issues challenged. A reporter’s record is necessary in this case because we have set aside the trial court’s finding that Williams presented no substantial question for appellate review.

Ill

Having concluded that section 263.405, as applied to Williams, deprived him of due process, we must determine an appropriate disposition. The trial court determined that Williams had presented no substantial question for appellate review only because his statement of points was late-filed. Because we have concluded that the late filing should not impede his appeal, a complete appellate record should be prepared, and the court of appeals should consider the issues raised in his statement of points as if it had been timely filed. We see no need to remand the case to the trial court, and in the interest of avoiding further delay, we do not do so. When the record has been prepared, the court of appeals can set an appropriate briefing schedule.

Accordingly, we reverse the judgment of the court of appeals and remand the case to that court.

Justice LEHRMANN did not participate in the decision.

      . 283 S.W.3d 336, 347 (Tex.2009).

      . Petitioner invokes both the Fourteenth Amendment to the United States Constitution and article I, section 19 of the Texas Constitution. Because "[tjhe parties have not identified any difference between the state and federal guarantees material to the issues in this case”, we treat them as the same. Nat'l Collegiate Athletic Ass’n v. Yeo, 171 S.W.3d 863, 867-868 (Tex.2005); id. at 868 n. 14 (citing Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995), and Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252-253 (1887)); see also Tex. Workers' Comp. Comm’n v. Garcia, 893 S.W.2d 504, 525 (Tex.1995) (noting that while these provisions have sometimes been treated as providing identical guarantees, the Court has occasionally attempted to formulate an independent standard for the state provision).

      . 317 S.W.3d 259 (Tex.App.-Tyler 2007).

      . Tex. Fam Code § 263.405(a) ("An appeal of a final order rendered under this subchapter is governed by the rules of the supreme court for accelerated appeals in civil cases and the procedures provided by this section.”).

      . Tex.R. Civ. P. 329b(a) ("A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.”).

      . Tex. Fam.Code § 263.405(b) ("Not later than the 15th day after the date a final order is signed by the trial judge, a party who intends to request a new trial or appeal the order must file with the trial court: (1) a request for a new trial; or (2) if an appeal is sought, a statement of the point or points on which the party intends to appeal.”).

      . Tex.R.App. P. 26.1(b) ("in an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed”); TexR.App. P. 20.1(c)(1) ("An appellant must file the affidavit of indigence in the trial court with or before the notice of appeal.”).

      . TexR.App. P. 20.1(c)(1) ("The prior filing of an affidavit of indigence in the trial court pursuant to Texas Rule of Civil Procedure 145 does not meet the requirements of this rule, which requires a separate affidavit and proof of current indigence.”).

      . Tex Fam.Code § 263.405(c) (“A motion for a new trial, a request for findings of fact and conclusions of law, or any other post-trial motion in the trial court does not extend the deadline for filing a notice of appeal under Rule 26.1(b), Texas Rules of Appellate Procedure, or the deadline for filing an affidavit of indigence under Rule 20, Texas Rules of Appellate Procedure.”); Tex.R.App. P. 28.1(b) (“Filing a motion for new trial, any other post-trial motion, or a request for findings of fact will not extend the time to perfect an accelerated appeal.”).

      . Tex.R.App. P. 28.1(b) ("Unless otherwise provided by statute, an accelerated appeal is perfected by filing a notice of appeal in compliance with Rule 25.1 within the time allowed by Rule 26.1(b) or as extended by Rule 26.3.”); Tex.R.App. P. 26.3 (“The appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party: (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).”).

      . Tex. Fam.Code § 263.405(d) ("The trial court shall hold a hearing not later than the 30th day after the date the final order is signed to determine whether: (1) a new trial should be granted; (2) a party's claim of indigence, if any, should be sustained; and (3) the appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code.”); see Tex. Civ. Prac. & Rem Code § 13.003(b) ("In determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review.”).

      . Tex. Fam Code § 263.405(e).

      . Tex.R.App P. 35.1(b). However, ”[i]n lieu of the clerk’s record, the appellate court may hear an accelerated appeal on the original papers forwarded by the trial court or on sworn and uncontroverted copies of those papers.” Tex.RApp P. 28.1(e).

      . See Tex Civ. Prac. & Rem.Code § 13.003(a) ("[A] court reporter shall provide without cost a statement of facts and a clerk of a court shall prepare a transcript for appealing a judgment from the court only if: (1) an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate Procedure; and (2) the trial judge finds: (A) the appeal is not frivolous; and (B) the statement of facts and the clerk’s transcript is needed to decide the issue presented by the appeal.”).

      . Tex. Fam.Code § 263.405(f) ("The appellate record must be filed in the appellate court not later than the 60th day after the date the final order is signed by the trial judge, unless the trial court, after a hearing, grants a new trial or denies a request for a trial court record at no cost.”).

      . Tex. Fam Code § 107.013(a) ("In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of: (1) an indigent parent of the child who responds in opposition to the termination.... ”).

      . In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).

      . Tex.R. Civ P. 10 (“An attorney may withdraw from representing a party only upon written motion for good cause shown.... The Court may impose further conditions upon granting leave to withdraw.").

      . Tex. Disciplinary R. Prof’l Conduct 6.01 ("A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of law or rules of professional conduct; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.”). The Court has proposed to amend the rule by redesignating the existing text as paragraph (b) and adding the following paragraph (a): "When a tribunal appoints a lawyer to represent a person, the lawyer shall represent the person until the representation is terminated in accordance with Rule 1.16(c).” Order Approving Proposed Amendments to the Texas Disciplinary Rules of Professional Conduct, Mise. Docket No. 09-9175 (Tex. Oct. 20, 2009). Proposed Rule 1.16(c) adds a sentence to what is currently Rule 1.15(c), so that it reads as follows: "A lawyer shall comply with these Rules, applicable rules of practice or procedure, and applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” Id.

        . Tex. Fam.Code § 263.405(e) ("If a party claims indigency and requests the appointment of an attorney, the court shall require the person to file an affidavit of indigency and shall hear evidence to determine the issue of indigency. If the court does not render a written order denying the claim of indigence or requiring the person to pay partial costs before the 36th day after the date the final order being appealed is signed, the court shall consider the person to be indigent and shall appoint counsel to represent the person.”).

      . See Tex. Fam.Code § 161.001(1)(D)-(E) ("The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence: (1) that the parent has: ... (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child_”).

      . Despite this finding, the trial court refused to find that an appeal would be frivolous. The trial court did not explain its reasoning. One possibility is that the judge presiding at the hearing had not presided over the trial and, of course, did not have a record of the evidence presented.

      . 317 S.W.3d 259 (Tex.App.-Tyler 2007).

      . 52 Tex.Sup.Ct.J. 653 (May 1, 2009).

      . 283 S.W.3d 336 (Tex.2009).

      . Id. at 340.

        .Id. at 339-340, 344-347.

      . Id.

      . Id. at 344.

      . Id. at 342, 344 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

      . Sultan v. Mathew, 178 S.W.3d 747, 752 (Tex.2005) ("Under the Texas Constitution, the courts of appeals have jurisdiction over ‘all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.' [Tex. Const, art. V, § 6.] As we stated in Seale v. McCallum, 116 Tex. 662, 287 S.W. 45, 47 (1926), ‘the principle is fixed that the Legislature has the power to limit the right of appeal....' ”); id. at 752 n. 6 ("[W]e also note that the United States Constitution does not guarantee the right to an appeal.”).

      . M.L.B. v. S.L.J., 519 U.S. 102, 111, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966)).

      . Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (citing Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27-31, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)); see In re M.S., 115 S.W.3d 534, 547 (Tex.2003).

      . Santosky, 455 U.S. at 753-754, 102 S.Ct. 1388; see Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985) ("The natural right existing between parents and their children is of constitutional dimensions.”).

      . In re B.L.D., 113 S.W.3d 340, 351-352 (Tex.2003).

      . In re M.S., 115 S.W.3d at 547.

      . Act of May 22, 2001, 77th Leg. R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws 2395, 2397-2398.

      . Act of May 12, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332.

      . See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994).

      . Tex. Fam.Code § 263.401.

      . Tex. Fam.Code § 263.405(g) ("The appellant may appeal the court’s order denying the appellant’s claim of indigence or the court’s finding that the appeal is frivolous by filing with the appellate court the reporter's record and clerk's record of the hearing held under this section, both of which shall be provided without advance payment, not later than the 10th day after the date the court makes the decision. The appellate court shall review the records and may require the parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues. The appellate court shall render appropriate orders after reviewing the records and appellate briefs, if any.”)


author: BRIAN HOYLE, Justice.

text:
    In the Interest of B.G., C.W., E.W., B.B.W. and J.W., Children.
    No. 12-06-00295-CV.
    Court of Appeals of Texas, Tyler.
    Sept. 19, 2007.
    Rehearing Overruled Oct. 11, 2007.
    Brent L. Watkins, for appellant.
    Duke E. Hooten, J. Dawn Armstrong, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   MEMORANDUM OPINION ON REHEARING

BRIAN HOYLE, Justice.

Appellant Lester Williams filed a motion for rehearing, which is overruled. The court’s opinion of July 18, 2007 is hereby withdrawn, and the following opinion is substituted in its place.

Appellant Lester Williams appeals the trial court’s postjudgment order denying him a free record in a conservatorship and termination proceeding brought by the Texas Department of Family and Protective Services (“DFPS”), Appellee. In one issue, Williams complains that the trial court violated his due process rights under the United States and Texas constitutions when it denied his request for a free record. We affirm.

Background

Following a bench trial, the trial court terminated Williams’s parental rights. Williams, who had discharged his court appointed trial counsel and acted pro se at trial, requested that the trial court appoint counsel to represent him on appeal. Through his subsequently appointed appellate counsel, Williams sought a free record based upon Williams’s indigent status. The trial court conducted a posttrial hearing on the matter and issued a written order denying Williams a free record. Williams now appeals that order.

Constitutional Issues

In his sole issue, Williams argues that the trial court -violated his due process rights under the United States and Texas constitutions when it denied his request for a free record. Section 13.003 of the Texas Civil Practice and Remedies Code governs the provision of free clerk’s records and reporter’s records to indigent appellants. See Tex. Civ. Prac. & Rem.Code Ann. § 13.003 (Vernon 2002). Under section 13.003, a trial court may order that an indigent appellant be provided a free clerk’s record and reporter’s record only if

(1) an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate Procedure; and
(2) the trial judge finds:
(A) the appeal is not frivolous; and
(B) the [reporter’s record] and the [clerk’s record] are needed to decide the issue presented by the appeal.

Tex. Civ. Prac. & Rem.Code Ann. § 13.003(a) (Vernon 2002).

Rule 33.1(a) of the Texas Rules of Appellate Procedure states as follows:

(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Tex.R.App. P. 33.1(a). Here, Williams did not assert his constitutional complaints at the hearing on his request for a free record. Therefore, it appears that Williams failed to preserve error, if any, for appellate review. See Tex.R.App. P. 33.1(a); In re T.L., No. 12-04-00219-CV, 2004 WL 2694600, at *5 (Tex.App.-Tyler Nov. 24, 2004, no pet.) (mem. op.) (applying rule 33.1 to constitutional issues). Further, such error, if any, would not constitute fundamental error, which would absolve Williams from the need to properly present it to the trial court. See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex.1993) (Fundamental error exists “in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.”).

Williams contends that he properly complied with rule 33.1 by asserting his constitutional complaints in a motion for reconsideration filed on September 20, 2006. We must, therefore, determine if Williams’s motion to reconsider was sufficient to preserve his issue for appellate review.

Subchapter E of Chapter 263 of the Texas Family Code governs final orders in conservatorship and termination proceedings in cases involving children under DFPS care. See In re A.J.K., 116 S.W.3d 165, 169-70 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Section 236.405(d) of sub-chapter E limits a trial court’s power to hold a section 13.003 hearing. See Tex. Fam.Code Ann. § 263.405(d) (Vernon 2002). According to section 236.405(d), a trial court shall hold a section 13.003 hearing “not later than the 30th day after the date the final order is signed.” Id.

Williams’s motion to reconsider was filed on September 20, 2006, sixty-four days after the final judgment was signed. Therefore, at the time the motion to reconsider was filed, the trial court had no power to reconsider its section 13.003 ruling. In addition, there is no evidence in the record supporting the proposition that the State either consented to or requested that the trial court reconsider the ruling. Finally, the mere fact that the section 13.003 hearing occurred does not supply the necessary additional jurisdiction for a subsequent reconsideration upon motion. Because chapter 263 limits the trial court’s jurisdiction of section 13.003 motions, we hold that Williams failed to present his constitutional complaints to the trial court and, thus, failed to preserve them for appellate review. See Tex.R.App. P. 33.1(a); In re T.L., 2004 WL 2694600, at *5. We overrule Appellant’s sole issue.

Disposition

We affirm the trial court’s order.

      . Williams has listed issues that he anticipates raising on appeal upon our reversal of the trial court’s order. Because these are anticipated issues only, we do not address them here.


author: EVELYN V. KEYES, Justice.

text:
    Anna Marie NGUYEN, Appellant, v. Alex YOVAN and Philip Yovan, Appellees.
    No. 01-07-00660-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 1, 2009.
    Rehearing Overruled Dec. 9, 2009.

      Thomas W. McQuage, Galveston, TX, for Appellant.
    Kenneth C. Kaye, Law Offices of Kenneth C. Kaye, League City, TX, Walter J. Kronzer III, Walter James Kronzer, III, P.C., Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
   OPINION

EVELYN V. KEYES, Justice.

In this suit on a contract for deed, appellant, Anna Marie Nguyen appeals the trial court’s take-nothing judgment in favor of the appellees, Alex Yovan and Philip Yovan. In two issues, Nguyen argues that (1) the contract is not barred by the statute of frauds and (2) the evidence supports numerous statutory violations.

We reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

Background

In early 2002, Nguyen and Alex Yovan met at 15817 Highway 6 in Santa Fe, Texas (the “property”), the site of land and a home for sale by Alex Yovan. Nguyen learned that the property was originally owned by one of Alex’s sons, Steven Yo-van, who later deeded it to another of Alex’s sons, Phillip Yovan. Phillip deeded the property to Alex.

Nguyen decided to purchase the property, and Donna Yovan, Alex’s wife, drafted the contract for deed and prepared an amortization schedule. The contract was originally in the names of Nguyen’s children, who were to live in the house while they went to college. In August 2003, the contract was revised to substitute Nguyen for her children, but it was otherwise identical to the first contract.

The contract for deed between Alex and Nguyen provided for the purchase of the land and home at 15817 Hwy. 6, Santa Fe, TX. The property was further identified as “ABST 613 Page 6 Lots 5 thru 7 HIGHWAY 6 UNRECORDED SUB.” Nguyen agreed to purchase the property from Alex for $37,000 at 10% interest for 10 years, making a $5,000 down payment and paying $422.88 a month. The contract for deed stated, “It shall be the responsibility of the sellers to obtain and maintain insurance on the house” and to “pay property taxes when they become due.” However, it also stated that “the buyers [Nguyen] will be responsible for April-Dee. or 75% of the taxes” for 2002. It then stated, “For the year 2003 and subsequent years, all taxes are the responsibility of the buyer. Tax receipt copies will be submitted on or before the first of February each year.” Finally, the contract provided, “Failure to maintain insurance or failure to pay taxes as they become due will revoke this contract and sellers [sic] will vacate the property.”

After receiving the contract for deed, Nguyen gave Alex a $5,000 cashier’s check, and Nguyen’s son began to remodel the house by replacing the floor, refurbishing the inside, repairing the ceiling, and replacing a window. Nguyen testified that she spent approximately $5,000 on these repairs. Nguyen lived in the house in 2003; she also had renters in the house at one time; and her daughter lived in the house.

Nguyen timely made payments on the contract for deed. In 2005, disputes arose regarding insurance and taxes. Specifically, Alex wrote a July 27, 2005 letter to Nguyen addressing the payment of taxes for 2003 and 2004, stating that Alex had paid the taxes and that he must be reimbursed immediately. Alex wrote another letter on August 2, 2005, stating that the 2003 and 2004 taxes were due in the amount of $2,853.24. Alex asked that Nguyen call him to inform him how the taxes would be handled, and he wrote that a failure to pay the taxes would revoke the contract. Nguyen may have paid the taxes late, but she eventually paid all of the taxes.

In the middle of 2005, Nguyen saw a surveyor to determine where her boundaries were so that she could install a storage shed. When she went to the survey- or’s office, she obtained a copy of a deed from Steven Yovan to Phillip Yovan referencing a lien in favor of Texas First Bank. Surprised by the lien, Nguyen talked to Alex to make sure that she was making payments on the right property, and Alex tried to explain how he had acquired the property. He denied that liens existed on the property. Alex also gave “stipulations” to Nguyen, which were notarized documents explaining the transfer of ownership from Philip to Alex. These stipulations stated that, to Alex’s knowledge, there were no liens on the property. However, Nguyen later learned that the property had a number of liens on it: a lien from Texas First Bank, two federal tax liens for failing to pay taxes, and a Builder’s and Mechanic’s lien. These liens were not mentioned in the contract for deed Nguyen signed, and she was not aware of their existence at the time she signed the contract for deed.

In 2006, Nguyen talked to Philip about paying off the purchase price on the contract for deed. Philip said he was going through a divorce so they should wait a few months. Philip testified that he never heard about it again, although Nguyen testified that she called Philip and he did not return her calls. Even though she did not pay off the contract for deed, Nguyen continued to make payments on it.

The contract for deed specified that the sellers had the “responsibility ... to obtain and maintain insurance on the house.” However, Donna, Alex Yovan’s wife, testified that she and Nguyen had an “agreement among friends” that consisted of Nguyen’s making payments on the note in a timely fashion and Nguyen’s providing insurance, including homeowner’s and windstorm insurance. Donna further testified that, in April 2006, she verbally told Nguyen to pay the property taxes.

The disputes over insurance and payment of taxes culminated in a letter written by Phillip on April 19, 2006, stating that he had not received proof of insurance and that property taxes had not been paid. The letter also stated, “[T]he house was not boarded up or protected in any way during the hurricane and the front roof shows damage from the wind. Verification of windstorm insurance needs to be provided, as well.” The letter stated that property taxes for 2005 needed to be paid and that Nguyen should provide a check payable to the taxing authorities or pay the taxing authorities directly. Nguyen testified that she made payments every month and that she paid when she was asked to. She recalled that in 2005, she was asked to pay the 2008 taxes but she had never been asked before. She understood that Alex would pay for the taxes and then ask for reimbursement from her. She testified that she provided homeowners insurance to the Yovans and that she had never been asked to provide windstorm insurance. Alex agreed that the April 2006 letter was the first time they had specifically mentioned windstorm insurance. In response to this letter, Nguyen paid the school taxes, but she testified that she did not know about the county taxes. After she was notified by Donna, Nguyen paid the county taxes as well.

On August 3, 2006, Nguyen received a letter from Philip stating that her contract was null and void and that the contract was terminated because “the house was not boarded up or protected in any way during the hurricane and the front roof shows damage from the wind.” The letter also stated, “The property taxes for 2005 were to be paid by January 31, 2006. These payments have been requested several times, and, as of the end of July, they are still due. This violation of the contract has occurred every year of this contract.” Nguyen testified that, after filing suit, she paid the outstanding property taxes but she did not fix the roof after the hurricane. As of the day of trial, Nguyen testified that she still owed $19,646.26 on the contract for deed, or 60% of the original $87,000 purchase price.

On August 30, 2006, Nguyen sued Alex and Philip on the contract for deed, seeking a declaratory judgment as to her rights under the contract, title to the property, possession, and specific performance of the Yovans’ obligation to convey title. Nguyen also alleged the Yovans had violated various statutes, entitling her to damages for breach of contract, violations of the Texas Deceptive Trade Practices Act, and common law fraud. Nguyen also sought attorney’s fees. In their third amended original answer, the Yovans generally denied the allegations and answered that any contract between themselves and Nguyen was void because the property description was too vague.

Following a trial to the bench, the trial court rendered a take-nothing judgment in favor of the Yovans. The trial court issued findings of fact and conclusions of law. In pertinent part, the trial court’s findings stated:

10. The property description listed in the 2002 Agreement and the 2008 Agreement does not furnish within itself, or by reference to some other existing writing, the means or data by which the property to be conveyed may be identified with reasonable certainty.
13. Anna Marie Nguyen and her children have not made permanent and valuable improvements to the property.
14. Anna Marie Nguyen and her children have not timely paid the real estate taxes on the property.
15. Anna Marie Nguyen and her children have not continuously since 2002 maintained insurance on the property.
24. Alex Yovan and Philip Yovan in good faith furnished Anna Marie Nguyen with the information required by statute.
25. Anna Marie Nguyen suffered no damage by Alex Yovan or Phillip Yovan’s failure to provide her with “annual accountings” each year.
26. Alex Yovan did not engage in any false, misleading or deceptive act that Anna Marie Nguyen relied on to her detriment and that was a producing cause of damages to Anna Marie Nguyen.
27. Philip Yovan did not engage in any false, misleading or deceptive act that Anna Marie Nguyen relied on to her detriment and that was a producing cause of damages to Anna Marie Nguyen.

In pertinent part, the trial court made the following conclusions of law:

1. The agreements which are the subject of this suit are barred by the Statute of Frauds.
2. Alex Yovan and Philip Yovan were not required to abide by the provisions of Sections 5.061, et seq. of the Texas Property Code. If they were required to abide by such provisions, they made a good faith effort to abide by them.
3. Philip Yovan gave proper notice to Anna Marie Nguyen of the termination of the agreements.

Statute of Frauds

In her first issue, Nguyen argues that the trial court improperly concluded that the contract violated the statute of frauds.

The statute of frauds requires that all conveyances of real property be in writing and signed by the party to be charged. See Tex. Bus. & Com.Code Ann. § 26.01(b)(4) (Vernon 2009). Whether a contract falls within the statute of frauds is a question of law. Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex.App.-Houston [1st Dist.] 2000, no pet.). We review the trial court’s conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 149 (Tex.App.Houston [14th Dist.] 2000, no pet.). When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex.App.Houston [14th Dist.] 1996, no writ). Incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id.

For a land sales contract to meet the requirements of the statute of frauds, it must furnish within itself or by reference to another existing writing the means or data to identify the particular land with reasonable certainty. See Pick v. Bartel, 659 S.W.2d 636, 637 (Tex.1983) (concluding description of land not certain when “No city, county or state is mentioned in connection with its location. No lot or block number is given, nor is there any indication as to the amount of land. No description by any particular name appears.”); Jones v. Kelley, 614 S.W.2d 95, 99 (Tex.1981) (concluding that property description satisfied statute of frauds when metes and bounds description was in evidence, and plat showed location of 36 acres within larger 116 acre tract and contained calls for course and distance of 36 acres); Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945) (property description deficient when no city, county or state was mentioned and there was no lot or block number and no indication of amount of land).

The purpose of a description in a written conveyance is not to identify the land, but to afford a means of identification. Jones, 614 S.W.2d at 99-100. “A writing need not contain a metes and bounds property description to be enforceable.” Texas Builders v. Keller, 928 S.W.2d 479, 481 (Tex.1996). If enough appears in the description so that a person familiar with the area can locate the premises with reasonable certainty, it is sufficient to satisfy the statute of frauds. Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248-49 (1955).

If a conveyance of an interest in real property does not sufficiently describe the land to be conveyed, it is void and unenforceable under the statute of frauds. See Republic Nat’l Bank of Dallas v. Stetson, 390 S.W.2d 257, 261 (Tex.1965). Such a contract, deed, or conveyance will not support an action for specific performance or a suit for damages for a breach of contract. Wilson, 188 S.W.2d at 152; Reiland v. Patrick Thomas Props., Inc., 213 S.W.3d 431, 437 (Tex.App.-Houston [1st Dist.] 2006, pet. denied).

Here, the contract for deed provides,
This contract between the seller, Alex Yovan and the buyer, Anna Marie Nguyen, is for the purchase of the land and house at:
15817 Hwy. 6, Santa Fe, Tx. The property description is as follows:
ABST 613 PAGE 6 LOTS 5 thru 7 HIGHWAY 6
UNRECORDED SUB
SANTA FE, TEXAS 0.384 ACRES
PARCEL # 4005-0000-0005-000
Anna Marie Nguyen, buyer, agrees to purchase this property from Alex Yovan, seller, for $87,000.00 at 10% interest for 10 years. There will be a down payment of $5,000.00. The payments of $422.88 per month will begin on May 1, 2002 and will continue on the first day of each month thereafter for one hundred twenty payments.
A late fee of $25.00 will be added to any payment that is 5 days late. If the sellers fail to make two payments, this contract will be considered revoked and the sellers will vacate the property.
It shall be the responsibility of the sellers to
obtain and maintain insurance on the house [Buyers will submit a copy of the insurance.]
pay property taxes when they become due [For the year 2002 the sellers will be responsible for Jan.-March or 25% of the taxes and the buyers will be responsible for April-Dee. Or 75% of the taxes. For the year 2003 and subsequent years, all taxes are the responsibility of the buyer. Tax receipt copies will be submitted on or before the first of February each year.]
Failure to maintain insurance or failure to pay taxes as they become due will revoke this contract and sellers will vacate the property.
This contract is solely between Anna Mane Nguyen and Alex Yovan and cannot be transferred in any way to any other parties. There is no penalty for paying this contract off early.

Here, the contract contains a complete street address, 15817 Hwy. 6, Santa Fe, Tx. See Apex Financial Corp. v. Garza, 155 S.W.3d 230, 237 (Tex.App.-Dallas 2004, pet. denied) (“We have held that a street address or a commonly-known name for property may be sufficient property description if there is no confusion.”). Neither party argues that there has been any confusion about the exact property that was conveyed by any of the deeds. In addition, the contract refers to another existing writing which has the means to identify the land with particular certainty. Specifically, the contract describes the land conveyed as the same land described in abstract 613, page 6, lots 5 through 7, Highway 6, unrecorded subdivision, Santa Fe, TX, 0.384 acres, parcel 4005-0000-0005-000.

Finally, Dale Hardy, the Yovan’s expert and a professional land surveyor, looked at the 2002 and 2003 contracts and agreed that they had the same property description. He agreed that the address allowed him to drive to the location physically, “but it would not provide the specifics in terms of dimensions in terms of width, length, depth, bearing, things of that sort.” He stated that the contract’s reference to “abstract 613 page 6” is a reference to “an IGN Railroad Company survey,” that would allow the location of the property in the county to be determined and that the reference to “lots 5 through 7 Highway 6, unrecorded sub” meant that the property had been divided and lot numbers assigned to it, but there was no direct link to a recorded public plat. Hardy further testified that the parcel number in the contract for deed was “a tax account number maintained by the GCAD or Galveston Central Appraisal District.” Then the following exchange occurred:

Q. Does GCAD maintain some type of map or plat or something like that? Do they have abstract 613 in their file?
A. Actually they do, yes, sir.
Q. And so using this partial number are you able to identify with certainty the exact property to be conveyed?
A. Using that parcel number and cross referencing back to their map you can identify a piece of property. If I may continue again, even with that information the fact that it’s referring back to an unrecorded subdivision means there’s no map to go verify the GCAD information against. GCAD’s purpose is to identify a piece of property, a taxpayer, so they can collect taxes on it. It’s not, they don’t have a responsibility to precisely define the property in terms of location or in terms of dimensions. They will be generally accurate but eertainly not definitive.

Hardy agreed that he could use the tax records to identify the property so that taxes could be collected on it, and he testified that the contract for deed referenced an IGN Railroad Company survey that had been divided into numbered lots with an address to which he could drive. Although Hardy testified that the description of the property would not be exact, a contract for deed need only have the “means or data by which the land to be conveyed may be identified with reasonable certainty.” See Morrow v. Shotwell, 477 S.W.2d 538 539 (Tex.1972). The law does not require a metes and bounds description or a plat in a recorded subdivision in order for land to be conveyed by a contract for deed. See Keller, 928 S.W.2d at 481.

Here, the contract for deed provides the size of the property, an address, a lot number in an unrecorded subdivision, an abstract number referencing a railroad survey map of the unrecorded subdivision locating it in the county, and a tax identification number for the parcel conveyed coordinated with the map. The parties were able to drive to the house and lot and there was no confusion as to the property conveyed by the contract for deed. We conclude that the evidence presented meets the standard of reasonable certainty. Accordingly, we hold that the contract satisfies the statute of frauds as a matter of law.

We sustain Nguyen’s first issue.

Property Code Violations

In her second issue, Nguyen argues that the evidence is legally and factually insufficient to support the trial court’s findings regarding statutory violations of the Texas Property Code. Specifically, Nguyen contends that the Yovans violated sections 5.063, 5.064, and 5.077 of the Texas Property Code. Violations of these sections of the Texas Property Code entitle a consumer to damages under the DTPA.

A. Standard of Review

In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact have the same weight as a jury’s verdict, and we review the legal and factual sufficiency of the evidence used to support them just as we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); In re K.R.P., 80 S.W.3d 669, 678 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). When challenged, a trial court’s findings of fact are not conclusive if, as in the present case, there is a complete reporter’s record. In re K.R.P., 80 S.W.3d at 673; Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex.App.Houston [1st Dist.] 1996, writ denied).

“When a party attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989)). In reviewing the legal sufficiency of the trial court’s finding, we must “examine the record for evidence that supports the finding, while ignoring all evidence to the contrary.” Id. If there is no evidence supporting the finding of the trial court, then we must “examine the entire record to determine if the contrary proposition is established as a matter of law.” Id. We will sustain the legal sufficiency challenge “only if the contrary proposition is conclusively established.” Id. (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983)).

“When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.” Id. at 242. We must “consider and weigh all of the evidence,” and we “can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.” Id.

The trial court held that “Alex Yovan and Philip Yovan were not required to abide by the provisions of Section 5.061, et seq. of the Texas Property Code. If they were required to abide by such provisions, they made a good faith effort to abide by them.” The trial court also held that Nguyen was “not entitled to recover the ‘liquidated damages’ set out in the Texas Property Code.” In support of its holding, the trial court found that Alex and Philip had in good faith furnished Nguyen the information required by statute and that Nguyen had suffered no damage by Alex’s and Philip’s failure to provide her with annual accountings each year.

B. Applicability of the Texas Property Code

Nguyen argues that the sections of the Texas Property Code cited above apply to her dealings with the Yovans. Section 5.062 provides,

(a) This subchapter applies only to a transaction involving an executory contract for conveyance of real property used or to be used as the purchaser’s residence or as the residence of a person related to the purchaser within the second degree by consanguinity or affinity, as determined under Chapter 573, Government Code. For purposes of this subchapter, and only for the purposes of this subchapter:
(1) a lot measuring one acre or less is presumed to be residential property;

Tex. PROP.Code Ann. § 5.062 (Vernon Supp. 2008).

The undisputed evidence shows that the parties entered into an executory contract, or contract for deed, and that the property initially served as the residence for Nguyen’s daughter and later Nguyen. Moreover, the contract describes the property as less than one acre, so that the property is presumed to be residential property. See id. § 5.062(a)(1). On appeal, the ap-pellees do not provide any argument or evidence in support of the trial court’s conclusion that the appellees did not need to comply with the statutory sections. We hold that the trial court erred in concluding that Chapter 5 of the Texas Property Code does not apply.

C. Section 5.077

The trial court found, “Alex Yovan and Philip Yovan in good faith furnished Anna Marie Nguyen with the information required by statute,” and, “Anna Marie Nguyen suffered no damage by Alex Yo-van or Philip Yovan’s failure to provide her with ‘annual accountings’ each year.” Nguyen challenges the legal and factual sufficiency of these findings, arguing that the Yovans faded to comply with section 5.077 of the Texas Property Code. See Tex. Prop.Code Ann. § 5.077 (Vernon Supp. 2008).

Section 5.077 provides that “the seller shall provide the purchaser with an annual statement in January of each year for the term of the executory contract.” Id. § 5.077(a). The accounting statement must include:

(1) the amount paid under the contract;
(2) the remaining amount owed under the contract;
(3) the number of payments remaining under the contract;
(4) the amounts paid to taxing authorities on the purchaser’s behalf if collected by the seller;
(5) the amounts paid to insure the property on the purchaser’s behalf if collected by the seller;
(6) if the property has been damaged and the seller has received insurance proceeds, an accounting of the proceeds applied to the property; and
(7) if the seller has changed insurance coverage, a legible copy of the current policy, binder, or other evidence that satisfies the requirements of section 5.070(a)(2).

Id. § 5.077(b)(l)-(7). A seller who conducts less than two transactions in a 12-month period under section 5.077 and who fails to comply with subsection (a) is liable to the purchaser for “(1) liquidated damages in the amount of $100 for each annual statement the seller fails to provide to the purchaser within the time required by Subsection (a); and (2) reasonable attorney’s fees.” Id. § 5.077(c)(l)-(2). A seller who conducts two or more transactions in a 12-month period and who fails to comply with Subsection (a) is liable to the purchaser for “(1) liquidated damages in the amount of $250 a day for each day after January 31 that the seller fails to provide the purchaser with the statement, but not to exceed the fair market value of the property; and (2) reasonable attorney’s fees.” Id. § 5.077(d)(l)-(2).

To succeed on her legal-sufficiency challenge, Nguyen had to establish, as a matter of law, all vital facts in support of this issue. See Francis, 46 S.W.3d at 241. The evidence shows that the Yovans did not give annual statements to Nguyen with the required information. On appeal, the Yovans do not cite to any evidence that they complied with this statutory section in good faith. The Yovans do argue that Nguyen did not “meet her evidentiary burden in establishing Alex Yovan and Phillip Yovan’s actions were the proximate or producing cause of damages to her.” However, this section of the Property Code does not require a purchaser to prove actual harm or injury to recover statutory damages. See Flores v. Millennium, Interests, Ltd., 185 S.W.3d 427, 434 (Tex.2005) (characterizing liquidated damages of section 5.077 as penalty that does not require proof of actual harm for recovery and stating that “to conclude that actual damages are a predicate to recovery under [section 5.077] would belie our conclusion that the liquidated damages provision is, in fact, punitive rather than compensatory”). We have not been directed to any evidence showing that the Yovans complied with section 5.077 in good faith. Accordingly, we conclude that Nguyen has demonstrated, as a matter of law, that the Yovans failed to comply with section 5.077.

We sustain Nguyen’s second issue on appeal as it relates to section 5.077.

D. Sections 5.063 and 5.064

Also in her second issue, Nguyen argues that the Yovans violated sections 5.063 and 5.064 of the Texas Property Code.

Section 5.064, entitled “Seller’s Remedies on Default,” provides,

A seller may enforce the remedy of rescission or of forfeiture and acceleration against a purchaser in default under an executory contract for conveyance of real property only if:
(1)the seller notifies the purchaser of:
(A) the seller’s intent to enforce a remedy under this section; and
(B) the purchaser’s right to cure the default within the 30-day period described by Section 5.065;
(2) the purchaser fails to cure the default within the 30-day period described by Section 5.065; and
(3) Section 5.066 does not apply.

Tex. PROp.Code Ann. § 5.064 (Vernon 2004).

Section 5.063, entitled “Notice,” provides,

(a) Notice under Section 5.064 must be in writing and must be delivered by registered or certified mail, return receipt requested. The notice must be conspicuous and printed in 14-point boldface type or 14-point uppercase typewritten letters, and must include on a separate page the statement:
YOU ARE NOT COMPLYING WITH THE TERMS OF THE CONTRACT TO BUY YOUR PROPERTY. UNLESS YOU TAKE THE ACTION SPECIFIED IN THIS NOTICE BY (date) THE SELLER HAS THE RIGHT TO TAKE POSSESSION OF YOUR PROPERTY.
NOTICE
(b) The notice must also:
(1) identify and explain the remedy the seller intends to enforce;
(2) if the purchaser has failed to make a timely payment, specify:
(A) the delinquent amount, itemized into principal and interest;
(B) any additional charges claimed, such as late charges or attorney’s fees; and
(C) the period to which the delinquency and additional charges relate; and
(3) if the purchaser has failed to comply with a term of the contract, identify the term violated and the action required to cure the violation.
(c) Notice by mail is given when it is mailed to the purchaser’s residence or place of business. The affidavit of a person knowledgeable of the facts to the effect that notice was given is prima facie evidence of notice in an action involving a subsequent bona fide purchaser for value if the purchaser is not in possession of the real property and if the stated time to avoid the forfeiture has expired. A bona fide subsequent purchaser for value who relies upon the affidavit under this subsection shall take title free and clear of the contract.

Tex. PROp.Code Ann. § 5.063 (Vernon 2004).

The Yovans testified that they did not send a letter in compliance with these two statutory sections. We have not been directed to any evidence that the Yovans attempted in good faith to comply with sections 5.063 and 5.064. Accordingly, we conclude that there is no evidence to support the trial court’s findings that Alex and Philip Yovan “made a good faith effort to abide by” sections 5.063 and 5.064 and that “Philip Yovan gave proper notice to Anna Marie Nguyen of the termination of the agreements.”

We sustain Nguyen’s second issue as it relates to sections 5.063 and 5.064.

The trial court’s findings of fact and conclusions of law demonstrate that the trial court applied erroneous theories of law, and the expressed findings made by the trial court do not provide the information we need to provide Nguyen with the relief that she requested — a declaration of her rights under the contract and the damages to which she is entitled under section 5.077 of the Texas Property Code.

When the trial court has made findings of fact and conclusions of law relevant to an erroneous interpretation of law, but did not make findings that would control the case under a correct legal interpretation, we reverse and remand the case for further proceedings. See Tex.R.App. P. 43.3 (“When reversing a trial court’s judgment, the court must render the judgment that the trial court should have rendered, except when ... a remand is necessary for further proceedings [or] the interests of justice require a remand for another trial.”); Jones v. Smith, 291 S.W.3d 549, 553-55 (TexApp.-Houston [14th Dist.] 2009, no pet.).

Conclusion

In sum, we hold that the contract for deed did not violate the statute of frauds and that the Yovans did not make a good faith effort to abide by statutory sections 5.063, 5.064, and 5.077 of the Texas Property Code. Therefore, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

      . See Tex. Puop.Code Ann. §§ 5.063-5.065 (Vernon 2004), § 5.077 (Vernon Supp. 2008), § 5.079 (Vernon 2004).

      . See Tex. Bus. & Com.Code Ann. § 17.46(b) (Vernon Supp. 2008), § 27.01 (Vernon 2009).

      . The 2002 contract is the contract in the name of Nguyen’s children while the 2003 contract is the contract in Nguyen’s name.

      . Nguyen's counsel stipulated to Hardy’s qualifications as an expert surveyor.

      . In her appellate brief, Nguyen also argues that the Yovans violated sections 5.066, 5.069, 5.084, and 5.085 of the Texas Property Code. However, we do not consider Nguyen’s arguments on these grounds because they were not raised in her pleadings in the trial court, nor were they tried by consent. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993) (“As a rule, a claim ... must have been asserted in the trial court in order to be raised on appeal.’’); see also TexR. Civ. P. 301 (judgment shall conform to the pleadings).

      . When a seller fails to comply with subsection 5.077(a), he is liable to the purchaser for liquidated damages. See Tex. Prop Code Ann. § 5.077(c)-(d). While the record demonstrates that the Yovans failed to comply with section 5.077(a), it does not provide the information necessary to determine the number of transactions the Yovans conduct in a 12-month period. Therefore, we cannot determine which measure of liquidated damages applies to this case.

      . Section 5.066 provides that, for a purchaser who has defaulted after paying 40 percent or more of the amount due or the equivalent of 48 monthly payments, the seller has the power to sell the purchaser’s interest, but may not enforce the remedy of rescission or of forfeiture and acceleration. See Tex. Prop.Code Ann. § 5.066 (Vernon 2004). At a trustee’s sale, the seller will convey fee simple title to the new purchaser. Id. If the proceeds from the sale exceed the debt under the executory contract, the seller will disburse the excess funds to the purchaser who defaulted on the execu-tory contract. If the proceeds are insufficient, the seller may recover the resulting deficiency under other sections of the Property Code. Id.


author: ANNE GARDNER, Justice.

text:
    In re Pervez DAREDIA, Relator.
    No. 2-09-106-CV.
    Court of Appeals of Texas, Fort Worth.
    Oct. 20, 2009.
    Rehearing En Banc Overruled Nov. 25, 2009.
    Gerstle, Minissale & Snelson, LLP and Steven S. Snelson, Dallas, TX, for Relator.
    Scheinthal & Kouts, LLP and Alan R. Scheinthal, Houston, TX, for Real Parties in Interest.
    PANEL: CAYCE, C.J.; GARDNER and McCOY, JJ.
   MEMORANDUM OPINION

ANNE GARDNER, Justice.

I. Introduction

Relator Pervez Daredia filed a petition for writ of mandamus asking this court to order the Respondent, Judge Doug Robi-son of the 393rd District Court, to vacate the trial court’s order granting the motion for judgment nunc pro tunc and the interlocutory default judgment of real parties in interest American Express Centurion Bank and American Express Bank (jointly “American Express”). Daredia further requests that this court enter a finding that the judgment signed on July 2, 2007, is a full and final judgment. We deny Dare-dia’s petition for writ of mandamus.

II. Factual and Procedural Background

On May 10, 2007, American Express brought suit against Daredia and Map Wireless, Inc. for monies owed on several American Express credit accounts opened and utilized by Daredia and Map Wireless. On June 4, 2007, Daredia filed an answer. Map Wireless did not file an answer. On June 23, 2007, American Express filed a motion for default judgment and a proposed judgment. On July 2, 2007, the trial court signed a default judgment which contained the language — “All relief not expressly granted herein is denied. This judgment disposes of all parties and all claims in this cause of action and is therefore FINAL.”

On October 29, 2008, American Express filed a motion for judgment nunc pro tunc in which it stated that its counsel had made typographical errors in both the motion for entry of judgment and the default judgment. It was American Express’s contention that the July 2007 judgment should only have disposed of Map Wireless and not Daredia. The motion further noted that Map Wireless was the only defendant that had failed to answer and that no relief had been sought against Daredia in the motion for entry of default judgment. American Express asked the trial court to enter a “nunc pro tunc interlocutory default judgment” to dispose solely of its claims against Map Wireless.

A hearing was set to take place on December 1, 2008, on American Express’s motion for judgment nunc pro tunc, but an objection was made to the visiting judge, and no hearing took place. Thereafter, on December 18, 2008, Judge Vicki Isaacks, at that time the presiding judge of the 393rd District Court, made a notation on the docket sheet indicating that the motion for judgment nunc pro tunc was granted. Judge Isaacks did not sign an order on the motion before her term expired on December 31, 2008. Respondent began his term as judge of the 393rd District Court on January 1, 2009.

Respondent held a hearing on February 22, 2009, on American Express’s motion to sign an order on the motion for judgment nunc pro tunc. During the hearing, Respondent stated that he believed that signing the order may be a ministerial act because Judge Isaacks had already made a docket entry indicating that she had granted the motion. Thereafter, on February 24, 2009, Respondent signed an order granting the motion for judgment nunc pro tunc, which vacated the July 2, 2007 default judgment, reinstated the case, and ordered the parties to confer and submit a Level 2 scheduling order to the court. That same day, Respondent also signed an interlocutory default judgment nunc pro tunc granting American Express’s requested relief against Map Wireless.

III. Analysis

Daredia contends that Respondent erred by granting American Express’s motion for judgment nunc pro tunc and by signing the interlocutory default judgment. Specifically, Daredia argues that the trial court lacked jurisdiction to vacate the final judgment because the February 24, 2009 orders were entered long after the trial court lost plenary jurisdiction. See Tex.R. Civ P. 329b. Daredia also argues that American Express was not entitled to the relief sought because a judgment nunc pro tunc cannot be used to vacate a final judgment and enter a new interlocutory judgment outside the trial court’s plenary jurisdiction. See Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex.1997); Nguyen v. Woodley, 273 S.W.3d 891, 896 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Dare-dia further argues that, even if a final judgment can be vacated by a judgment nunc pro tunc, there is no evidence of a clerical error in this case; therefore, the trial court erred by granting the motion for judgment nunc pro tunc. See Tex.R. Civ. P. 316, 329b(f); Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). Lastly, Daredia contends the trial court erred by not requiring American Express to provide clear and convincing evidence of a clerical error. See In re Broussard, 112 S.W.3d 827, 833 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding).

American Express argues that the trial court was well within its discretion to grant the motion for judgment nunc pro tunc because it was merely correcting a clerical error. Specifically, American Express contends that the trial court

(a) recognized that the proposed judgment submitted by counsel contained an error because it purported to enter a default judgment against both defendants instead of just the corporate defendant, (b) then attempted to correct that error itself, but (c) committed its own error by failing to conform the entire order consistent with its obvious intention.

When the trial court loses plenary power over a judgment, it also generally lacks the authority to vacate the judgment. See Tex.R. Civ. P. 329b(f); DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex.App.-Dallas 2008, no pet.) (explaining that the trial court’s plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment is limited to a maximum of one hundred and five days after the judgment is signed). Proceedings related to the trial court’s judgment after its plenary power has expired are generally beyond the trial court’s jurisdiction. See In re Dickason, 987 S.W.2d 570, 571 (Tex.1998) (orig. proceeding); Coleman v. Sitel Corp., 21 S.W.3d 411, 413 (Tex.App.-San Antonio 2000, no pet.) (holding that after the trial court’s plenary power expired, the trial court had no jurisdiction to change or vacate its judgment); Moore v. Brown, 993 S.W.2d 871, 874 (Tex.App.-Fort Worth 1999, pet. denied) (stating that once “a trial court’s plenary power has expired, it has no jurisdiction to modify or change its original judgment except by bill of review”); see also State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995) (“Judicial action taken after the court’s jurisdiction over a cause has expired is a nullity.”). Here, we must determine if the July 2007 judgment was a final judgment rendering the signing of the February 24, 2009 orders outside of the trial court’s plenary power.

The Supreme Court of Texas has concluded that a judgment without a trial on the merits is not final “unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties.” See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001); see also In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex.2005) (orig. proceeding); In re Granite Shop, No. 02-08-00410-CV, 2009 WL 485696, at *1, ⅜3 (Tex.App.-Fort Worth, Feb. 24, 2009, orig. proceeding). Daredia contends that the July 2007 judgment is a final judgment because it contains language indicating that “[a]ll relief not expressly granted herein is denied. This judgment disposes of all parties and all claims in this cause of action and is therefore FINAL.” The quoted language, absent more, would appear to make that judgment 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 leave no doubt about the court’s intention.”); see also Burlington Coat, 167 S.W.3d at 830.

American Express appears to argue that its counsel’s drafting errors and Judge Isaacks’s edits rendered the July 2007 judgment ambiguous because the judgment did not dispose of its claims against Daredia. In determining whether a judgment is ambiguous, we apply the same rules we would use to ascertain the meaning of other written instruments. See Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 474 (Tex.App.-Fort Worth 2007, no pet.) (“The same rules of interpretation apply in construing the meaning of court orders as in ascertaining the meaning of other written instruments.”). Here, the order fails to address any of American Express’s claims against Dare-dia, yet it contains language that clearly and unequivocally indicates that it is a final judgment. See Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343, 350 (Tex.App.-San Antonio 2007, pet. denied). We agree with American Express that the judgment is ambiguous on its face. See id.

When it is not clear whether a summary judgment is final, we determine finality from both the language of the judgment and the record in the case. See Lehmann, 39 S.W.3d at 195. Here, the record resolves the ambiguity. On May 10, 2007, American Express brought suit against Daredia and Map Wireless for their failure to make payments on several credit accounts. The suit sought judgment against Daredia and Map Wireless for $769,789.91 plus interest, costs, and attorney’s fees. On June 4, 2007, Daredia filed his original answer. Map Wireless failed to file an answer. On June 23, 2007, American Express filed its motion for entry of default judgment in which it stated that Map Wireless was in default for failing to appear and answer and sought judgment against Map Wireless for the damages pled in its suit against Map Wireless. American Express sought no relief against Daredia in the motion for entry of default judgment, and the July 2007 default judgment, which was prepared by American Express, does not speak to the claims against Daredia.

Based on these facts, we conclude that the July 2007 judgment did not resolve American Express’s claims against Dare-dia; therefore, the judgment was interlocutory, and the trial court retains jurisdiction over this case. See Lehmann, 39 S.W.3d at 205; Granite Shop, 2009 WL 485696, at *3. Because the trial court retains jurisdiction over this ease, the trial court did not abuse its discretion by signing the February 24, 2009 orders as the trial court was within its plenary power to correct or modify the interlocutory judgment to clarify that the claim against Daredia is still pending. See DeGroot, 260 S.W.3d at 662. Because of our holding that the trial court retained jurisdiction over this case, we need not address Dare-dia’s remaining arguments regarding the nature of the error in the July 2007 judgment. See Tex.RApp. P. 47.1. Accordingly, Daredia’s petition for writ of mandamus is denied.

      . See Tex.R.App. P. 47.4.