Charles Linder Floyd v. Wharton County ( 2016 )

NUMBER 13-15-00480-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHARLES LINDER FLOYD, Appellant,
v.
WHARTON COUNTY, ET AL, Appellee.
On appeal from the 329th District Court
of Wharton County, Texas.
ORDER OF ABATEMENT
Before Justices Garza, Perkes, and Longoria
Order Per Curiam
After due consideration of the pleadings on file in this matter, the Court has
determined that additional jurisdictional briefing is necessary. Texas Rule of Appellate
Procedure 38.7 provides that “[a] brief may be amended or supplemented whenever
justice requires, on whatever reasonable terms the court may prescribe.” TEX. R. APP.
P. 38.7.
The trial court initially rendered a final judgment in this cause on March 11, 2013.
On July 21, 2014 the trial court entered an “Order Vacating Judgment and Reinstating
Cause of Action.” Appellant appeals from a subsequent judgment rendered on August
17, 2015. Inasmuch as the March 11, 2013 judgment appears to be a final judgment, it
appears that the August 17, 2015 judgment is a void judgment and that we do not have
jurisdiction over this cause.
A trial court retains jurisdiction over a case for a minimum of thirty days after a final
judgment, during which time the court has plenary power to change its judgment. See
TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith Southern Equipment, Inc., 10
S.W.3d 308, 310 (Tex. 2000). Certain post-judgment motions, if filed within this initial
thirty day period, extend the trial court's plenary power for up to an additional seventy-five
days. See TEX. R. CIV. P. 329b(c), (e) & (g).
After the expiration of plenary power, the trial court cannot set aside a judgment
except by bill of review for sufficient cause, filed within the time allowed by law. TEX. R.
CIV. P. 329b(f). Once a trial court loses plenary jurisdiction over its judgment, the
judgment becomes final, and any modification to the judgment will be set aside as void.
In re Daredia, 317 S.W.3d 274, 276 (Tex. App.—Fort Worth 2009). Any action taken
affecting a judgment after the trial court’s plenary power has expired is a nullity. Jackson
v. Van Winkle, 660 S.W.2d 807, 808 (Tex. 1983). An appellate court's jurisdiction
extends no further than the jurisdiction of the trial court. George v. Phillips Petroleum
Co., 976 S.W.2d 363, 364–65 (Tex. App.—Houston [14th Dist.] 1998, no writ) (citing
Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (1958)). Therefore, this Court has
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no jurisdiction to consider the merits of an appeal from a void judgment. Mellon Service
Co. v. Touche Ross & Co., 946 S.W.2d 862, 864 (Tex. App.—Houston [14th Dist.] 1997,
no writ).
Accordingly, the Court requests supplemental briefing from the parties regarding
this Court’s jurisdiction to consider an appeal from the August 17, 2015 judgment. The
parties’ briefs on this issue shall both be filed within thirty days from the date of this order.
This appeal is abated and removed from the Court’s active docket until receipt of the
requested briefing.
IT IS SO ORDERED.
PER CURIAM
Delivered and filed the
8th day of November, 2016.
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