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Civil Litigation No. 06-03-00006-CV, 5/28/2003. Click here for the full text of this decision FACTS: Antonio S. Gonzales Jr., a minor child, by and through Antonio S. Gonzales Sr., as next friend, sued the city of Marshall d/b/a the Marshall Civic Center, for injuries the child received while at the city’s civic center. The city asserted sovereign immunity with respect to all of Gonzales’ claims and filed a plea to the court’s jurisdiction based on that immunity. A hearing was held on the city’s plea, and two days later, the trial court signed an order granting the plea and dismissing the suit with prejudice. Seventy-one days later, the trial court sent a letter to counsel advising that the order granting the city’s motion had been signed in error. Fifty-five days after that (126 days following the order of dismissal), the trial court signed an order denying the city’s plea to the jurisdiction. The city brings this accelerated appeal, contending the trial court was without jurisdiction when it signed the order denying the city’s plea to the court’s jurisdiction, or alternatively, the court erred in denying its plea because the city has sovereign immunity with regard to all of Gonzales’ claims. HOLDING: Reversed and rendered. Unlike Stewart v. USA Custom Paint & Body Shop Inc., 870 S.W.2d 18 (Tex. 1994), the dismissal order in the instant case states the case number at the top and then sets out a complete caption, clearly identifying the parties. The court hold this order of dismissal to be “sufficiently definite and certain to define and protect the rights of all litigants.” Both parties and the case number were identified, and the trial court’s ruling was clear: Gonzales’ claims against the city of Marshall were dismissed with prejudice in their entirety for want of jurisdiction. Gonzales’ contention that this order was not a final judgment because no notice of judgment was given to the parties is unavailing. Texas Rule of Civil Procedure 306a(3) provides that, when a final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record. However, failure to give this notice is not determinative of whether an order is a final judgment or an appealable order. The Dallas Court of Appeals recently held that a trial court is not required to assess costs for its judgment to be final. Thompson v. Beyer, 91 S.W.3d 902 (Tex. App. – Dallas 2002, no pet. h.). The court acknowledged that the Texas Supreme Court has not specifically addressed why a judgment need not assess costs to be final. But, as pointed out by the Dallas court, the Texas Supreme Court has assumed, without discussion, that a trial court’s failure to assess costs does not affect the finality of its judgment. The court agrees the failure to assess costs does not affect the finality of the trial court’s judgment. A trial court is not powerless to correct judicial mistakes, but those corrections must be made within the trial court’s plenary power over the judgment. On the other hand, a trial court may correct clerical mistakes nunc pro tunc, regardless of the time period. In this case, the trial court may have mistakenly granted the order of dismissal; but, such a mistake was a judicial error, which may not be corrected nunc pro tunc. Gonzales contends, alternatively, that the trial court properly granted a new trial. He argues that the trial court’s docket entry and Oct. 25 letter must be deemed an order granting a motion for new trial. According to Gonzales, his Aug. 26 letter to the trial court should be considered a motion for new trial, which was subsequently granted by the Oct. 25 letter from the trial court. The court agrees with the city’s conclusion that “[t]he letter brief is just that, a brief.” Within that letter, Gonzales said, “At the close of the hearing, the Court asked Plaintiff to submit a letter brief to provide the court with information regarding this issue. As such, I respectfully provide this letter pursuant to the Court’s request.” This statement clearly explains the intentions of Gonzales at the time he filed the Aug. 26 letter with the court. Moreover, the way the trial court thought of Gonzales’ letter was revealed in the court’s letter of Oct. 25 when it referred to the letter as a brief, not as a motion for new trial. Without construing Gonzales’ letter as a motion for new trial, which the court declines to do, there is no motion for new trial filed by Gonzales. Without a motion for new trial, the trial court’s plenary power was not extended beyond 30 days; therefore, the trial court’s letter of Oct. 25 cannot be an order granting a new trial. The Oct. 25 letter from the trial court states, “when I received Plaintiff’s letter brief, I discovered my error in signing the order and made a docket entry accordingly.” It can be speculated that this language refers to the acts of the person who marked through the trial court’s signature on the Aug. 15 order of dismissal and wrote the words “signed in error,” and that those acts occurred Aug. 30. But without such speculation, there is no evidence in the record the trial court did anything with respect to this case until Oct. 25. The letter to the parties written by the trial court on that date, explaining the court’s mistake in signing the dismissal order, was penned 41 days after the trial court had lost its plenary power over the case. Gonzales finally contends the city waived any appeal of the trial court’s Oct. 25 letter (and all that transpired as a result of the letter) because the city did not appeal the letter within the appellate time table. However, even construing the letter as an order, an order after a trial court loses its plenary power is void on its face. If an order is void on its face, it may be appealed, but it need not be to prove its invalidity. The court concludes the trial court had no power to vacate the Aug. 15 order after its plenary power had expired. Accordingly, the trial court’s Dec. 19, 2002, order denying the city’s plea to the jurisdiction is reversed and judgment rendered in favor of the city. OPINION: Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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