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Click here for the full text of this decision FACTS:The relator, Helena Chemical Co., petitions this court to issue a writ of mandamus directing the respondent, the Honorable John Jackson, Judge of the 13th Judicial District Court of Navarro County, to vacate his “Interlocutory Summary Judgment” of May 5, 2003. Helena argues that the underlying case was finally resolved by a summary judgment order of Jan. 10, 2003, and therefore, the May 5 order is void because the court’s plenary power had expired. The real parties in interest, Michael Crawford and Michael Crawford Farms, disagree. Crawford argues that the court’s Jan. 16, 2003, letter to the parties constituted an order that vacated the court’s Jan. 10 summary judgment. Therefore, Crawford contends, the May 5 judgment is not void because the court retained jurisdiction over a pending case. HOLDING:Denied. To resolve this mandamus the court ascertains the effect of the Jan. 16 letter, i.e., did the letter vacate the Jan. 10 summary judgment effective Jan. 16, or did Judge Jackson’s words “will withdraw” convey an intent to vacate it in the future? Helena argues alternatively that “will withdraw” conveyed an intent to do something in the future, which was never done, and that even if Judge Jackson intended to vacate his judgment effective Jan. 16, 2003, he had no discretion to do so. The court finds Helena’s reliance on Texas Rule of Civil Procedure 320 misplaced. Rule 329b: “The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.” Helena cites Rule 320, which deals with the trial court’s granting of a new trial for good cause on a party’s motion or sua sponte. But the Notes and Comments indicate changes by amendments in 1955 and 1984 to avoid redundancy and to maintain consistency with Rule 329b. Therefore, the court does not believe that Rule 320 governs a judge’s withdrawal or vacating of a summary judgment to the exclusion of 329b. Moreover, the court disagrees with Helena’s principal argument, regarding Judge Jackson’s use of the words “will withdraw,” and the court finds that the Jan. 16 order vacated the order of Jan. 10. The Texas Supreme Court has said that the appellate court is to look to the record to ascertain the judge’s intent when construing a final judgment. Lehmann v. Har-Conn Corp., 39 S.W.3d 191 (Tex. 2001). Similarly, the court looks to the record to ascertain the judge’s intent when construing an order issued within the court’s period of plenary power. It is clear from the record that Judge Jackson intended to defer ruling on Helena’s motion for summary judgment until the parties had mediated their dispute. The specific language in the Jan. 16 order � though imperfectly worded � conveys an intent to vacate the order on that day. Moreover, Judge Jackson’s May 5, 2003, order notes that he had previously withdrawn the Jan. 10th summary judgment. Accordingly, considering the order in light of the entire record, the court denies the petition. OPINION:Vance, J.; Gray, C.J., Vance and Strother, JJ. DISSENT:Gray, C.J. “The letter the trial court sent to the parties in this case stated:”I will withdraw my ruling and the summary judgment previously signed. I will reconsider the same on February 1, 2003.’ (Emphasis added). It is not clear that the trial court intended a present ruling withdrawing his earlier order. This is especially true when, as here, the trial court indicated a specific date in the future when he intends to reconsider the ruling and the summary judgment. By stating he intended to”reconsider the same’ in the second sentence of the letter, and having referenced only his”ruling and summary judgment previously signed’ in the first sentence, the logical construction of the letter is that on February 1, 2003, he will reconsider the earlier ruling and summary judgment, in essence the judgment he signed on January 10, 2003. His use of the term”will,’ not once but twice, in the letter also indicates an event to occur in the future, not a present act. “This letter is not an order. Because the majority finds that it is, I respectfully dissent to the majority’s decision to deny the petition for writ of mandamus.”

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