Judgment signed after expiration of plenary power is void, subject to vacature if appealed

SEVERANCE MADE SANCTIONS ORDER FINAL 

SUBSEQUENT SUMMARY JUDGMENT FOUND VOID 

Offord v. West Houston Trees, Ltd. No. 14-16-00532-CV (Tex.App.- Houston [14th Dist.] April 19, 2018) (trial court judgment vacated for lack of jurisdiction, rather than reversed and rendered).

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.

No. 14-16-00532-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Memorandum Opinion filed April 19, 2018.

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.).

Running the risk of missing the appellate deadline

The appellate clock keeps ticking

Can the 15-day grace period to file notice of appeal after it is due be taken for granted? -- Don’t be too sure. The deadline reprieve is not a matter of right, even if a very good excuse -- not to mention a compelling reason for tardiness -- may not be required under established precedent.   In an opinion released yesterday, the appellate panel keeps up the reader’s suspense for a few paragraphs while discussing the rule and the circumstances in the particular case, but ultimately says it will grant the extension and consider the appeal on the merits. Pasted below is the relevant part of the lengthy opinion, which constitutes yet another installment in a veritable litigation saga, and also offers some of other interesting stuff that makes fodder for separate blawg posts (such as attorney immunity from tort liability for wrongful conduct engaged in in the course of representing a client and dismissal on special exception for failure to state a legally viable cause of action).  

Easton v. Phelan, 
No. 01-10-01067-CV (Tex.App. – Houston [1^st Dist.] May 10, 2012, no pet. h.)

Timeliness of notice of appeal

  

Because the August 30 orders constituted a final judgment and Easton and Whatley filed a timely motion for new trial, the parties had 90 days after the orders were signed to file a notice of appeal.  See Tex. R. App. P. 26.1(a); Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam).  The 90th day following the date that the orders were signed was Sunday, November 28, 2010.  Because the 90th day was a Sunday, the actual deadline by which the parties should have filed a notice of appeal was the following day, Monday, November 29.  See Tex. R. App. P. 4.1(a).  Since Easton and Whatley filed notice of the present appeal on December 6, the filing was untimely.

Before filing their own motion to dismiss this appeal, Easton and Whatley argued in response to the appellees’ motions to dismiss that, in the event that this court concludes that the notice of appeal was untimely, we should treat their notice of appeal as a motion to extend the time for filing an appeal.  They assert that a court of appeals must exert jurisdiction whenever a notice of appeal is filed within 15 days of the applicable deadline.  See Tex. R. App. P. 26.3.

Notices of appeal filed within the 15 days of the relevant deadline for filing such a notice are treated as implied motions for extension of time to file notice of appeal.  Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).  However, contrary to Easton and Whatley’s assertion, we are not obliged to grant an implied motion for extension filed within the 15-day grace period.  See Tex. R. App. P. 26.3 (providing that “appellate court may extend the time to file the notice of appeal,” emphasis added).  Whether we grant a motion for extension hinges on whether the appellant provides a reasonable explanation for the untimeliness of the filing, that is, a “plausible good faith justification for filing their notice of appeal when they did.”  Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003) (per curiam); see also Tex. R. App. P. 10.5(b)(1)(C) & 26.3(b).  “Absent a finding that an appellant’s conduct was deliberate or intentional, the court of appeals should ordinarily accept the appellant’s explanations as reasonable.”  Hone, 104 S.W.3d at 887.  Thus, under the liberal standard applied in these cases, any reason short of deliberate or intentional noncompliance qualifies as reasonable.  See id. at 886–87.  A misunderstanding of the law and the appellate timetables may be considered a reasonable explanation.  Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989) (holding that appellant had provided reasonable explanation when he erroneously believed that appeal bond could only be filed after receiving trial court’s findings of fact and conclusions of law); but see Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex. App.—Amarillo 1999, no pet.) (finding counsel’s excuse “implausible and, therefore, unreasonable” when purported misunderstanding of law would not explain why notice of appeal was filed 26 days beyond counsel’s hypothetically correct deadline).  For this court to grant an extension, the appellant is not required to concede that its notice of appeal was untimely filed.  Hone, 104 S.W.3d at 888.

On December 6, 2010, less than 30 days after the trial court denied their motion for new trial, Easton and Whatley filed a second notice of appeal from “the court’s Judgment signed August 30, 2010, and the denial of the Motion for New Trial rendered on November 8, 2010.”  After the Locke Lord attorneys and Thompson Coe attorneys filed motions for involuntary dismissal of the appeal for want of jurisdiction, see Tex. R. App. P. 42.3(a), Easton and Whatley maintained in a written response filed on February 14, 2011 that “[t]he denial of the motion for new trial, by itself, is a stand alone and appealable order which forms the basis of a point of error in the appeal.”  In their opening brief on the merits of this case, they allege that the trial court denied their motion for new trial and that a “timely notice of appeal was given . . . to the denial of the motion for new trial.”  Moreover, in their reply brief, they state, “If this Court should now find that the judgment is final . . . then the appellate timetable began when the district court denied the motion for new trial, and not before, as a timely-filed motion for new trial extends the time period.”

From Easton and Whatley’s filings in this court, it is apparent that they believe that the appellate timetables commence from a denial of a motion for new trial and that filing a notice of appeal within 30 days of such denial is timely.  Their apparent belief is mistaken, because even when the trial court denies a motion for new trial, the appellate timetables commence from the date that the final judgment is signed.  See Tex. R. App. P. 26.1(a).  Nevertheless, a mistake regarding the law is a reasonable explanation for the purpose of deciding whether to grant an implied motion for extension.  See Garcia, 774 S.W.2d at 670; Doe v. Brazoria Cnty. Child Protective Servs., 226 S.W.3d 563, 571 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  Therefore, treating the notice of appeal as an implied motion for extension of time to file a notice of appeal, we grant the motion.  Tex. R. App. P. 26.3. 

SOURCE: HOUSTON COURT OF APPEALS - 01-10-01067-CV – 5/10/12

Rules governing timeliness of notice of appeal are rather unforgiving

  

Unsigned opinion of Houston Court of Appeal illustrates severe consequences of failing to comply with appellate deadlines. Once the allotted time thas run, the issue becomes jurisdictional and the attempted appeal will result in dismissal.

The clock keeps ticking 

MEMORANDUM OPINION

Appellant,[name omitted], attempts to appeal from the trial court’s judgment signed January 31, 2011. Because appellant’s notice of appeal was untimely filed, we dismiss.

Generally, a notice of appeal is due within thirty days after the judgment is signed. See Tex. R. App. P. 26.1(a). The deadline to file a notice of appeal is extended to 90 days after the date the judgment is signed if any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. Id. We may extend the time to file the notice of appeal if, within 15 days after the deadline to file the notice of appeal, the party properly files a motion for extension. See Tex. R. App. P. 10.5(b), 26.3. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the 15-day extension period provided by Rule 26.3. See Tex. R. App. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997).

The record reflects that appellant timely filed a motion to vacate the trial court’s judgment, which extended the deadline for appellant to file his notice of appeal to 90 days after the date the judgment was signed, or Monday, May 2, 2011. See Tex. R. App. P. 26.1(a). Appellant’s notice of appeal was not filed until Wednesday, May 18, 2011. Appellant did not file a motion to extend time to file his notice of appeal and did not file his notice of appeal within the Verburgt period. See Tex. R. App. P. 26.3; Verburgt, 959 S.W.2d at 617–18.

Appellant’s notice of appeal was untimely filed. Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See Tex. R. App. P. 25.1.

On August 26, 2011, we notified appellant that his appeal was subject to dismissal for want of jurisdiction unless, by September 15, 2011, he filed a response showing that this Court has jurisdiction of the appeal. No response was filed by that date. Appellant later filed a new notice of appeal, but it does not show that this Court has jurisdiction of the appeal.

Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

SOURCE: HOUSTON COURT OF APPEALS - 01-11-00437-CV - 12/1/11

Miss Deadline to Appeal, and Risk Dismissal

30-DAY DEADLINE TO FILE NOTICE OF APPEAL MISSED - UNTIMELY FILING WILL RESULT IN ORDER DISMISSING THE APPEAL

Normally anyhow. There is a grace period - 15 extra days - but a proper motion should be filed within that time period with a good reason or excuse. After that, it's too late, unless the requirements for restricted appeal are satisfied.

PER CURIAM MEMORANDUM OPINION
OF THE 14TH COURT OF APPEALS

This is an attempted appeal from a judgment signed March 10, 2008. Appellant's notice of appeal was filed October 19, 2009.

The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of law. See Tex. R. App. P. 26.1.

Appellant's notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997) (construing the predecessor to Rule 26). Appellant's notice of appeal was not filed within the fifteen-day period provided by Rule 26.3

On February 3, 2010, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant's response fails to demonstrate that this Court has jurisdiction to entertain the appeal.

Accordingly, the appeal is ordered dismissed.

Hendrix v. Bryant (pdf) (Tex.App.- Houston [14th Dist.] Mar. 4, 2010)(per curiam)
(untimely notice of appeal; no timely motion for extension for additional 15 days)
DISMISSED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-00897-CV Jake Hendrix v. Cheryl Bryant
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums

RELATED TERMS AND PHRASES: appellate time-table, deadline for notice of appeal when no post-judgment motion and no findings or facts and conclusions of law are filed, motion for extension of time to file notice of appeal, invoke the appellate court's jurisdiction, consequences of failure to meet deadline

Fatal Mistake on Appeal - Missing deadline

Court of Appeals dismisses appeal as untimely where notice of appeal was filed day after it was due. Right to request extension waived.

How much time to file appeal (from final judgment*) in Texas?

A notice of appeal must be filed within 30 days after the date that a judgment is signed. Tex. R. App. P. 26.1. This time period is extended to 90 days if any party files: (1) a motion for new trial; (2) a motion to modify judgment; (3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or (4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court. Tex. R. App. P. 26.1(a).

An untimely notice of appeal fails to vest the appellate court with jurisdiction to hear the case. Slaton v. State, 981 S.W.2d 208, 209–10 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 605–06 (Tex. App.—Houston [1st Dist.] 1999, no pet.)

Here, the trial court signed the judgment in Tran’s case on June 8, 2007. Therefore, Tran’s notice of appeal was due by July 9, 2007. Tran filed his notice of appeal on August 9, 2007, which was 31 days after the expiration of the time period during which any notice of appeal must be filed.

Tran did not move for extension of time to file his notice of appeal. See Tex. R. App. P. 26.3 (allowing motion for extension of time to file notice of appeal within 15 days of notice’s due date). Accordingly, Tran’s notice of appeal was untimely, and we lack jurisdiction to hear this appeal.

Conclusion

We dismiss the appeal for lack of jurisdiction. All other pending issues in this appeal are overruled as moot. The Clerk is directed to issue the mandate. See Tex. R. App. P. 18.1.

PER CURIAM

Tran v. Poe
(Tex.App. - Houston [1st Dist.] Aug. 14, 2008)(per curiam) (prisoner lawsuits, inmate litigation, jurisdictional dismissal of appeals; notice of appeal was filed too late)
Before Chief Justice Sherry Radack, Justices Evelyn Keyes and Laura Carter Higley
Appellate Cause No. 01-07-00656-CV
Full style: Anh Viet Tran v. Ted Poe and Charles A. Rosenthal, Jr.
Appeal from 334th District Court of Harris County

*) Note different deadline for appealing from interlocutory orders:

Under the current rules, an appeal is perfected when a written notice of appeal is filed. Tex. R. App. P. 25.1(a). Appeals from interlocutory orders, when allowed, are accelerated appeals. Tex. R. App. P. 28.1. In accelerated appeals, the notice of appeal must be filed within twenty days after the signing of the order or judgment being appealed. Tex. R. App. P. 26.1(b).

Watch Deadlines to Preserve Right to Pursue Appeal

In re Kerry Beal (Tex.App.- Houston [1st Dist.] July 17, 2008) (subst. per curiam op)(untimely notice of appeal, attempted appeal dismissed)

This case illustrates a number of things that can be done wrong when a party wants to appeal but does not pay close attention to the rules governing deadlines and extensions.

FROM THE PER CURIAM OPINION 

A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997) (construing the predecessor to Rule 26).

However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See Tex. R. App. P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18. Appellant's notice of appeal was not filed within the fifteen-day period provided by rule 26.3.

On December 10, 2007, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant's response failed to demonstrate that this Court has jurisdiction to entertain the appeal.

After our original opinion issued on January 24, 2008, dismissing the appeal for lack of jurisdiction, appellant filed a motion for rehearing.

Appellant complains on rehearing that he filed a motion for new trial and mailed it on May 26, 2007. To be timely, a motion for new trial must be filed within thirty days after the judgment is signed. See Tex. R. App. P. 26.1. The record shows that appellant's motion for new trial, filed on June 4, 2007, was not timely filed.

Appellant also claims the deadline for perfecting his appeal was extended by a request for findings of fact and conclusions of law. The record indicates appellant's request for findings of fact and conclusions of law was filed on April 23, 2007.

A request for findings and conclusions only extends the date for perfection if findings and conclusions are required by the rules of civil procedure or could properly be considered by the appellate court. Tex. R. App. P. 26.1(a)(4). Under the rules of civil procedure, findings and conclusions are required when a party requests them within twenty days after judgment is signed in a case tried without a jury. Tex. R. Civ. P. 296. Appellant's request was not filed within twenty days after the signing of the judgment.

Appellant claims in his motion for new trial that he mailed his motion for new trial on May 26, 2007, and his request for findings on April 5, 2007. Even if these documents were mailed on the dates appellant claims, the motion and request would be considered untimely because neither was received in time to fit within the parameters of the mailbox rule.

According to the mailbox rule, a document received within ten days after the filing deadline is considered timely filed if it was sent to the proper clerk by U.S. Postal Service. Tex. R. App. P. 9.2(b)(1). Appellant claims his motion for new trial was mailed on May 26, 2007, but it was due on April 20, 2007.

The motion for new trial was filed on June 4, 2007, a date not within ten days after the filing deadline of April 20, 2007.

Appellant claims he mailed his request for findings and conclusions on April 5, 2007. The request for findings was not file-stamped until April 23, 2007, but it was due on April 10, 2007 (20 days after the judgment was signed). Thus, the request was not received within ten days of the filing deadline of April 10, 2007. Because it was not timely filed, appellant's request for findings of fact and conclusions of law did not extend the deadline to file the notice of appeal.

Because appellant did not file any timely post-judgment motions, the notice of appeal was due thirty days after judgment was signed. Appellant filed his notice of appeal on June 22, 2007, ninety-two days after the judgment was signed.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

DISMISSED: Per Curiam
Before Justices Brock Yates, Guzman and Brown
Appellate cause no.: 14-07-00530-CV
Style: In Re Kerry Beal
Appeal from 295th District Court of Harris County
Trial Court Judge: Tracy Kee Christopher

Sanctions against out-of-state debt collector affirmed

Plaintiff's attorney was no-show for trial in debt collection suit in which defendant maintained that the alleged debt had been paid. Trial court imposed frivolous suit sanctions against Hosto & Buchan, an Arkansas law firm that sues individuals and businesses on behalf of creditors (or their alleged assignees) in Texas courts. First Court of Appeals, in opinion written by Chief Justice Radack, finds that complaint against sanctions order was not preserved for appellate review, but reforms judgment to reflect dismissal without prejudice for want of prosecution.

Midland Funding NCC-2 Corp. v. Josiah Azubogu, No. (Tex.App. - Houston [1st Dist.], Dec. 13, 2007)(Opinion by Justice Radack) (DWOP, reinstatement, appellate deadlines, sanctions for baseless suit)
Appeal from 165th District Court of Harris County (Hon. Elizabeth Ray)

MEMORANDUM OPINION

Appellant, Midland Funding NCC-2 Corp. (“Midland”), filed suit against appellee, Josiah Azubogu. The trial court dismissed the case with prejudice for want of prosecution and imposed sanctions against Midland’s law firm, Hosto & Buchan, P.L.L.C., for filing a frivolous lawsuit and failing to appear at trial. In two points of error, Midland contends the trial court erred in (1) dismissing Midland’s case with prejudice for want of prosecution and (2) awarding sanctions on its own initiative, without notice of hearing and with no countersuit asserted.

We modify the judgment, and, as modified, we affirm.

Background

Midland, represented by Hosto & Buchan, filed an original petition against Azubogu in the 165th Judicial District of Harris County, Texas on April 18, 2005. Midland claimed to be the assignee of an account in default originally owed by Azubogu. Azubogu filed an original answer on May 16, 2005, setting forth a general denial and asserting the affirmative defense that the alleged debt had been fully satisfied.

On October 14, 2005, the trial court generated a docket control order setting the date of trial at May 22, 2006. Azubogu and his counsel appeared at 10:00 A.M. on May 31, 2006, when the court coordinator called the case for trial. Neither Midland nor Midland’s counsel appeared at that time.

No one at Hosto & Buchan returned several calls made by the court coordinator. The trial court telephoned lead counsel at a number in Dallas and left two voice mail messages. The trial court also called a Little Rock, Arkansas number and reached Mr. Hosto, a named partner of the firm. Mr. Hosto was unaware of the proceedings and told the court that he was not licensed in Texas. Mr. Hosto informed the court he would send a Dallas or Houston lawyer to the court immediately.

The trial court advised Mr. Hosto that the file showed the case was being frivolously prosecuted and it planned to award sanctions under Rule 13 in the amount of $5,000 against Hosto & Buchan. The trial court also advised Mr. Hosto that it would reconsider its position if Mr. Hosto dispatched an attorney to the court immediately.

Midland’s counsel failed to timely appear. The court dismissed the case for want of prosecution, with prejudice, and awarded sanctions under Rule 13 for filing a frivolous lawsuit.

On June 7, 2006, Midland timely moved for new trial, requesting that the case be reinstated, or alternatively, that the judgment be modified to a dismissal without prejudice. Midland’s motion was not verified. Midland filed notice of its appeal on August 28, 2006.

Jurisdiction

Midland’s motion for new trial requests that the trial court (1) reinstate the case, or, alternatively, (2) reform the judgment to dismiss the case without prejudice. To seek reinstatement of a dismissed case, the movant must set forth the grounds for reinstatement in a verified motion filed with the clerk within 30 days after the dismissal order is signed. Clark v. Yarbrough, 900 S.W.2d 406, 408 (Tex. App.—Texarkana 1995, writ denied). Rule 165a(3) requires that “[a] motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed. . . .” Tex. R. Civ. P. 165a(3) (emphasis added). A timely and proper motion to reinstate extends the trial court’s plenary jurisdiction until 30 days after the motion to reinstate is overruled. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990). An unverified motion to reinstate, however, extends neither the trial court’s plenary power, nor the time in which to perfect an appeal. Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986).

Midland’s motion for new trial is unverified; therefore, as a motion to reinstate, it is insufficient to extend the time in which to perfect an appeal. The trial court’s order became final on June 30, 2006. Under rule 26.1(a) of the Texas Rules of Appellate Procedure, a notice of appeal was required to be filed on or before July 30, 2006. Tex. R. App. 26.1(a). Even implying an extension of time, the notice of appeal could be filed no later than August 15, 2006. Midland’s notice of appeal was not filed until August 28, 2006. Thus, Midland’s notice of appeal is untimely unless its motion for new trial sought more than reinstatement of the case. See Tex. Dep’t of Transp. v. Martini, 902 S.W.2d 138, 140–41 (Tex. App.—Houston [1st Dist.] 1995, no writ) (holding that postdismissal motion need not have been verified to extend appellate timetables because it sought more relief than mere reinstatement of case).

In this case, Midland’s postdismissal motion sought two forms of relief—reinstatement of the case or, alternatively, reformation of the judgment to a dismissal without prejudice. We hold that the portion of the motion seeking reformation of the judgment is more than a motion to reinstate; it is a motion for new trial. See id. A proper motion for new trial will extend one’s appellate timetables. See Tex. R. App. 26.1(a)(1) (notice of appeal must be filed within 90 days, not 30 days, if motion for new trial filed). Because Midland’s motion for new trial extended the appellate timetable, its notice of appeal is timely and this Court has jurisdiction. Thus, we turn to the merits of the appeal.

Dismissal with Prejudice for Want of Prosecution

In issue one, Midland contends the trial court erred by dismissing its case for want of prosecution with prejudice. We agree.

When a plaintiff fails to appear and prosecute his case, the court’s only remedy is to dismiss the case. Smock v. Fischel, 207 S.W.2d 891, 892 (Tex. 1948). A judge rendering a judgment other than that authorized by Rule 165a has exceeded his jurisdiction. Lum v. Lacy, 616 S.W.2d 260, 261 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) (citing Freeman v. Freeman, 327 S.W.2d 428, 433 (Tex. 1959)); see Burton-Lingo Co. v. Lay, 142 S.W.2d 448, 448 (Tex. Civ. App.—El Paso 1940, no writ) (holding trial court is without jurisdictional power to render any judgment against non-appearing plaintiff other than dismissal of plaintiff’s suit for want of prosecution). Dismissal for want of prosecution does not preclude the filing of another suit; therefore, dismissing a case with prejudice for want of prosecution is improper. See Willis v. Barron, 604 S.W.2d 447, 450 (Tex. App.—Tyler 1980, writ ref’d n.r.e.). If a case has been dismissed with prejudice for want of prosecution, the order of the trial court dismissing the suit must be reformed to eliminate the words “with prejudice.” Id.; Melton v. Rylander, 727 S.W.2d 299, 303 (Tex. App.—Dallas 1987, writ ref’d n.r.e.). Although the trial court had authority to dismiss Midland’s case for want of prosecution under Rule 165a, it improperly dismissed the case with prejudice.

Accordingly, we sustain Midland’s first point of error. We modify the judgment to dismiss the case for want of prosecution without prejudice.
Sanctions

In its second issue on appeal, Midland contends the award of sanctions must be reversed because the trial court (1) did not provide Hosto & Buchan with proper notice and hearing before imposing sanctions; (2) accepted evidence from Mr. Azubogu at the time of trial regarding payment of the account, and such evidence improperly formed the basis of the sanctions imposed for filing a frivolous lawsuit; (3) erred by awarding monetary sanctions on its own initiative; (4) erred by failing to state the particulars of good cause for the order of Rule 13 sanctions, and (5) lacked authority to impose sanctions for Midland’s failure to appear at trial.

Midland did not raise these complaints in its motion for new trial and cannot complain on appeal of such error, if any. See Tex. R. App. P. 33.1(a)(1)(A) (“[a]s a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that 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”); see Sterling v. Alexander, 99 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“We find appellant waived his objection to the trial court’s sanction because he does not cite to any place in the record nor have we identified anything in the record where he preserved his argument.”). Midland has waived any error regarding the award of sanctions and cannot now complain on appeal.

Accordingly, we overrule Midland’s second issue on appeal.

Conclusion

We modify the judgment to dismiss the case without prejudice, and, as modified, we affirm.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.