SEVERANCE MADE SANCTIONS ORDER FINAL
SUBSEQUENT SUMMARY JUDGMENT FOUND VOID
Order Vacated and Memorandum Opinion filed April 19, 2018.
In The
Fourteenth Court of Appeals
NO. 14-16-00532-CV
DIANA G. OFFORD AND DIOGU KALU DIOGU II, Appellants
V.
WEST HOUSTON TREES, LTD., Appellee
On Appeal from the County Court at Law No. 2
Fort Bend County, Texas
Trial Court Cause No. 16-CPR-028846
M E M O R A N D U M O P I N I O N
DIANA G. OFFORD AND DIOGU KALU DIOGU II, Appellants,
v.
WEST HOUSTON TREES, LTD., Appellee.
Court of Appeals of Texas, Fourteenth District, Houston.
Russell C. Jones, for West Houston Trees, LTD, Appellee.
Diogu K. Diogu, II, for Diana G. Offord and Diogu Kalu Diogu II, Appellant.
On Appeal from the County Court at Law No. 2, Trial Court Cause No. 16-CPR-028846, Fort Bend County, Texas.
Order Vacated.
Panel consists of Justices Boyce, Jamison, and Busby.
MEMORANDUM OPINION
J. BRETT BUSBY, Justice.
Appellant Diogu Kalu Diogu II represented appellant Diana G. Offord in an heirship proceeding initiated by Offord. The trial court sanctioned both Diogu and Offord for their conduct in the heirship proceeding. The trial court severed the sanctions award into a separate cause and then granted a summary judgment motion filed by appellee, West Houston Trees, Ltd. in the severed case.
Because there were no issues of fact or law remaining on the issue of sanctions once the trial court signed the severance order, we conclude that the severance order made the sanctions award a final judgment. We further conclude that because the trial court's summary judgment was signed after the trial court's plenary power over the severed case had expired, the order is void and must be vacated.
BACKGROUND
Offord's father, Winter Gordon, Sr., died in late 2011. Offord, represented by Diogu, initiated an heirship proceeding in early 2012. West Houston Trees appeared in the heirship proceeding, arguing that an administration of Gordon's estate was necessary. During the ensuing proceedings, the trial court sanctioned Offord and Diogu, jointly and severally, a total of $35,000 payable to West Houston Trees. The sanctions were imposed for filing frivolous pleadings under section 10.001 of the Civil Practice and Remedies Code and Rule 13 of the Texas Rules of Civil Procedure, as well as for violations of Rules 21, 21a, 21b and 215.2(b) of the Texas Rules of Civil Procedure. The sanctions order was signed on June 23, 2013. The probate of Gordon's estate continued after the trial court levied the sanctions against appellants.
West Houston Trees moved to sever the sanctions order two years later. West Houston Trees argued it had "an independent cause of action to collect the sanctions and attorney's fees previously awarded by the Court." Our record does not contain a live pleading requesting enforcement, however. The probate court granted the motion on January 11, 2016, thereby severing the sanctions order into a separate cause number.[1]West Houston Trees subsequently filed in the severed case an amended petition, requesting only judgment on the sanctions, and a motion for summary judgment, arguing that there was "no genuine issue of material fact as to any element of sanctions." The trial court granted the motion on April 4, 2016. Diogu filed a motion for new trial on April 28, 2016, which the probate court denied on June 29, 2016. This appeal followed.
ANALYSIS
Before we reach appellants' issues on appeal, we must first address their motion to dismiss. As part of their motion, appellants argue that we should dismiss their own appeal because the trial court's plenary power had expired before it signed the final summary judgment.[2]
With certain exceptions not applicable here, a trial court loses plenary power over a case thirty days after it signs a final judgment. See Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). When a trial court issues an order outside of its plenary power, the order is void. In re Southwestern Bell Tel. Co.,35 S.W.3d 602, 605 (Tex. 2000); B.Z.B., Inc. v. Clark, 273 S.W.3d 899, 904 (Tex. App.-Houston [14th Dist.] 2008, no pet.). A void order is a nullity and has no effect. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).
This Court has previously recognized that a final judgment is not determined by its form, but by its language and the record on appeal. B.Z.B., Inc., 273 S.W.3d at 902. To be final, a judgment or order either must state clearly and unequivocally that it disposes of all claims and parties, or it must dispose of every pending claim and party regardless of its language. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). An order "can be final and appealable when it should not be." Id. at 204. Additionally, "the language of an order or judgment cannot make it interlocutory when, in fact, on the record, it is a final disposition of the case." Id. at 200.
When a suit is severed, two or more independent lawsuits result, and each is resolved by its own final appealable judgment. Beckham Grp., P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.-Dallas 2010, no pet.). In general, a judgment or order becomes final upon severance if it disposes of all of the claims and parties in the severed action, unless the order of severance indicates that further proceedings are to be had in that action. See A-Affordable Ins. Agency, Inc. v. AEA Ins. Agency, Inc., No. 14-09-00879-CV, 2010 WL 2103967, at *1 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (per curiam) (mem. op.); Panatrol Corp. v. Emerson Elec. Co., 147 S.W.3d 518, 521 (Tex. App.-San Antonio 2004, pet. denied); Tanner v. Karnavas, 86 S.W.3d 737, 743 (Tex. App.-Dallas 2002, pet. denied).
In the present case, the order of severance provides, in pertinent part: "IT IS ORDERED, that [West Houston Trees'] claim for payment of the award of sanctions is hereby severed from this cause, . . . and is to be styled West Houston Trees, Ltd. vs. Diana Offord and Diogu K. Diogu, II." The order of severance does not indicate that further proceedings remained to be had on the sanctions award.
We conclude that no issues of law or fact remained to be resolved on the sanctions levied against appellants once the trial court signed the severance order. Because appellants did not file a notice of appeal or a motion extending the trial court's plenary power, the January 11, 2016 severance order made the sanctions award final, and the trial court's plenary power expired thirty days later. See Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996).[3]
The trial court's plenary power having expired in February 2016, we agree with appellants that the trial court did not have jurisdiction to sign the April 4, 2016 summary judgment. As a result, the April 4, 2016 summary judgment is void. In re Southwestern Bell Tel. Co., 35 S.W.3d at 605; B.Z.B., Inc., 273 S.W.3d at 904. The remedy in this situation is not to dismiss the appeal as requested by appellants, but to declare the judgment void and vacate it. See B.Z.B., Inc., 273 S.W.3d at 903 ("It is settled law in Texas that, while it is not necessary to appeal from a void judgment, an appeal may be taken and the appellate court in such a proceeding may declare the judgment void."). We therefore grant appellants' motion to dismiss in part, declare the April 4, 2016 summary judgment order void, and vacate that order.[4]
CONCLUSION
Because the trial court was without jurisdiction to grant summary judgment on April 4, 2016, that summary judgment order is declared void and is vacated.[5]
[1] The probate court ordered the following items included in the severed case: (1) the motion for sanctions, (2) the transcript of the sanctions hearing, (3) the sanctions order, (4) the motion to sever, and (5) the order to sever.
[2] Appellants initially filed their motion to dismiss in May 2017 and it was taken with the case. Appellants filed a supplement to their motion in February 2018.
[3] We note that West Houston Trees filed its amended petition in the severed case on February 25, 2016. This petition had no effect because it was filed after the trial court's plenary power expired. In any event, the petition does not add a cause of action; it "requests judgment on the Order Imposing Sanctions." As explained above, West Houston Trees had already received that relief when the severance order made the sanctions order final.
[4] Because the deadline to challenge the merits of the trial court's sanctions and severance orders had expired long before the notice of appeal was filed in this case, we render no opinion on the propriety of the trial court's order severing its sanctions order from the underlying litigation in which the sanctions were levied and into a separate cause of action. See Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., L.P.,No. 16-108, 2018 WL 1022475, at *3 (Tex. Feb. 23, 2018) (stating that a judgment's finality determines whether an appellant invoked a court's appellate jurisdiction by timely filing a notice of appeal).
[5] Appellants included in their supplemental motion to dismiss a request that we sanction appellee and its counsel $42,000. See Tex. R. App. P. 45 ("If the court of appeals determines that an appeal is frivolous, it may . . . award each prevailing party just damages."). Whether to grant sanctions for a frivolous appeal is a matter of discretion that an appellate court exercises with prudence and caution and only after careful deliberation in truly egregious circumstances. Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex. App.-Houston [14th Dist.] 2008, no pet.). Assuming without deciding that Rule 45 authorizes an appellate court to sanction an appellee who did not file a cross-appeal, we exercise our discretion and deny appellants' request. See MEMC I, LLC v. Town of Double Oak, No. 02-12-00049-CV, 2013 WL 626977, at *2 (Tex. App.-Fort Worth Feb. 21, 2013, no pet.) (mem. op.).
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